Opinion
No. 09-20442 Summary Calendar.
February 25, 2010.
Charles Anthony Allen, Sr., Navasota, TX, pro se.
Appeal from the United States District Court for the Southern District of Texas, USDC No. 4:08-CV-3536.
Before JOLLY, WIENER, and ELROD, Circuit Judges.
Charles Anthony Allen, Sr., Texas prisoner # 1043550, filed a 42 U.S.C. § 1983 complaint against several prison officials asserting Eighth Amendment and due process claims arising out of an incident and the resulting disciplinary proceedings. The district court dismissed Allen's complaint as frivolous because it was filed more than two years after the applicable limitations period had expired, and Allen was not entitled to equitable tolling. Allen now appeals.
We agree with the district court that Allen's complaint was filed after the expiration of the two-year limitations period and that his two prior federal lawsuits, dismissed for want of prosecution and improper joinder, did not operate to toll the limitations period. See, e.g., Holmes v. Tex. A M Univ., 145 F.3d 681, 684-85 (5th Cir. 1998). As Allen's appeal is without merit, we dismiss it as frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5TH CIR. R. 42.2. The dismissal of this appeal as frivolous counts as a strike under 28 U.S.C. § 1915(g). Allen is cautioned that once he accumulates three strikes, he may not proceed in forma pauperis in any civil action or appeal filed while he is incarcerated or detained in any facility unless he is under imminent danger of serious physical injury. See § 1915(g).
APPEAL DISMISSED; SANCTION WARNING ISSUED.