* Pursuant to 5TH CIR. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 02-10488

Summary Calendar

 

STEVE DOUGLAS MCNEAL,

Plaintiff-Appellant,

versus

NFN NOCK, Sergeant; NFN BARNES, 

Sergeant; NFN DUFFY, Officer; 

ROBERT VINCENT MARTINEZ,

 Defendants-Appellees.

_________________________________________________________________

Appeal from the United States District Court

for the Northern District of Texas

(5:01-CV-106-C)

_________________________________________________________________

October 2, 2002

Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Steve Douglas McNeal, Texas prisoner # 1048066, appeals, pro

se, the dismissal as frivolous of his 42 U.S.C. § 1983 civil rights

complaint. We review such a § 1915 dismissal for abuse of

discretion. E.g., Norton v. Dimazana, 122 F.3d 286, 291 (5th Cir.

1997).
2

McNeal contends: Defendants denied him access to the courts;

and Sergeant Nock engaged in the unauthorized practice of law. He

also asserts, for the first time on appeal, that he has been

discriminated against because of his indigency. Because this claim

was not presented to the district court, we will not address it.

See, e.g., Stewart Glass & Mirror, Inc. v. U.S. Auto Glass Discount

Centers, Inc., 200 F.3d 307, 316-17 (5th Cir. 2000). McNeal also

asserts, again for the first time on appeal, that he continues to

be denied access to legal materials, impeding his ability to fully

develop his claims. This claim is similarly barred. See id. Even

if we were to consider the claim, it fails for the reason that, as

McNeal acknowledges, he has been transferred from the Lubbock

County Jail; thus, the Lubbock County Jail officials, Defendants,

are not the proper defendants for any claim for continued denial of

access following his transfer out of their custody.

McNeal’s claim against Sergeant Nock for allegedly engaging in

the unauthorized practice of law fails because McNeal has not

demonstrated any resulting constitutional violation. See Johnson

v. Dallas Indep. Sch. Dist., 38 F.3d 198, 200 (5th Cir.), cert

denied, 514 U.S. 1017 (1994)(“To plead a constitutional claim for

relief under § 1983, [a plaintiff must] allege a violation of a

right secured ... by the Constitution or laws of the United

States”). 

His claim against his attorney, Martinez, for denial of access

to the courts likewise fails because, as the magistrate judge
3

determined, Martinez, a private citizen, is not a requisite state

actor for § 1983 purposes. See Polk County v. Dodson, 454 U.S.

312, 318-19 (1981). 

McNeal’s claim against the Lubbock County Jail officials for

denial of access to legal materials is similarly without merit

because, as McNeal conceded, he was represented by counsel, to whom

he had adequate access. See Tarter v. Hury, 646 F.2d 1010, 1014

(5th Cir. 1981).

McNeal now claims the magistrate judge erred in determining

that Martinez was not a state actor, based on McNeal’s assertion

that Martinez conspired with jail officials to deny him access to

the courts; he further contends the magistrate judge erred in

determining that access to Martinez was sufficient to satisfy

McNeal’s right of access to the courts. The true nature of his

claim, however, appears to be that Defendants conspired to have him

wrongfully convicted. In other words, McNeal seeks to recover

money damages for an allegedly illegal conviction; his claim is

barred by Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). 

McNeal next contends that the magistrate judge erred by not

promptly conducting the Spears hearing and in failing to permit him

to amend his complaint “despite the 8 month delay” in holding the

Spears hearing. Contrary to McNeal’s assertion, there was only a

two-month delay in holding the hearing, with the delay being an

attempt to accommodate his transfer to a different prison. McNeal

conclusionally states that the delay permitted Defendants to harm
4

him further by continuing to deny him access to legal materials;

but, as explained, any alleged denial of access post-transfer

cannot be attributed to Defendants. Moreover, McNeal has not

demonstrated any injury resulting from the delay or from the denial

of his motions to amend, because he has not specified how a more

prompt evidentiary hearing or an amendment to the complaint would

have cured the defects in his claims. Accordingly, any error in

postponing the hearing or in failing to allow him to amend was

harmless. 

McNeal’s appeal is wholly without merit, is frivolous, and is

therefore DISMISSED. See 5TH CIR. R. 42.2. The magistrate judge’s

dismissal of his complaint counts as a “strike” for 28 U.S.C. §

1915(g) purposes, as does this dismissal of this appeal. See

Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996). McNeal is

CAUTIONED that if 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 in imminent

danger of serious physical injury. See 28 U.S.C. § 1915(g).

DISMISSED; THREE-STRIKES WARNING ISSUED