* 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that this opinion should not be published and is not precedent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. 97-60782 

Conference Calendar

 

OWEN NELSON,

Plaintiff-Appellant,

versus

RICHARD STRINGER, Sheriff; UNKNOWN, Deputy Sheriffs of

Marion County; CHARLES M. BRYANT; BILL VASILION, Deputy,

Defendants-Appellees.

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Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 2:96-CV-90-PG

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June 17, 1998

Before DAVIS, PARKER, and DENNIS, Circuit Judges. 

PER CURIAM:*

Owen Nelson, Mississippi prisoner #44870, appeals from the

dismissal of his claims against Sheriff Richard Stringer and the

grant of judgment as a matter of law for Deputies Charles Bryant

and Bill Vasilion in Nelson’s civil-rights case. Nelson moves in

his reply brief for production of a trial transcript; Nelson’s

motion for the transcript is DENIED.

Nelson contends that the district court erred by dismissing
No. 97-60782

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his claims against Sheriff Stringer before trial because trial

testimony indicated that Stringer was present when chemical

agents were used on Nelson; because Stringer was the county’s

final policymaker; because Stringer is responsible for

controlling the officers under his command; and because Stringer,

along with the other defendants, was deliberately indifferent to

the use of chemical agents against him.

We have reviewed the record and the briefs and we find no

nonfrivolous issue regarding the dismissal of Nelson’s claims

against Stringer. Accordingly, we hold that the Nelson’s

contentions regarding the dismissal of his claims against

Stringer are frivolous for essentially the reasons upon which the

district court relied. Nelson v. Stringer, No. 2:96-CV-90-PG

(S.D. Miss. Oct. 31, 1996)(unpublished). Moreover, we lack a

copy of the trial transcript to review Nelson’s contention that

the evidence presented at trial implicated Stringer.

Nelson contends that the evidence at trial demonstrated that

the defendants were deliberately indifferent to the use of

chemical agents against him. Nelson has not provided this court

with a copy of the trial transcript. “The failure of an

appellant to provide a transcript is a proper ground for

dismissal of the appeal.” Richardson v. Henry, 902 F.2d 414, 416

(5th Cir. 1990). Nelson’s transcript request, made in his reply

brief, was too late to be considered. Granting Nelson’s request

would prejudice the defendants, who already have briefed the
No. 97-60782

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appeal.

Nelson’s appeal is without arguable merit and is frivolous. 

Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). This court

previously dismissed an appeal of Nelson’s as frivolous, Nelson

v. Puckett, No. 97-60304 (5th Cir. Apr. 8, 1998)(unpublished),

following that dismissal of the underlying complaint as

frivolous. The dismissal of Nelson’s appeal by this court

constitutes one more strike against Nelson for purposes of 28

U.S.C. § 1915(g), for a total of three strikes. Nelson may not

bring a civil action or appeal a judgment proceeding IFP unless

he is under imminent danger of serious physical injury.

§ 1915(g).

APPEAL DISMISSED. APPELLANT BARRED UNDER 28 U.S.C.

§ 1915(g).