IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-10121

Summary Calendar

JAMES LEE BYRD,

Plaintiff-Appellant

v.

JOHN H. ADAMS, Senior Warden; JAMIE L. BAKER, Assistant Warden;

DHIRAJLAL PATEL, Correctional Physician,

Defendants-Appellees

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 2:09-CV-312

Before KING, GARZA and STEWART, Circuit Judges.

PER CURIAM:

*

James Lee Byrd, Texas prisoner # 1260737, filed a civil rights complaint

alleging cruel and unusual punishment and deliberate indifference to his serious

medical needs. The complaint stems from a prison policy restricting high

security inmates to one roll of toilet paper per week. Byrd developed

hemorrhoids and peeling skin as a result of resorting to the use of writing paper,

newspaper, and cloth as substitutes for toilet paper. The district court dismissed

United States Court of Appeals

Fifth Circuit

F I L E D

August 11, 2010

Lyle W. Cayce

Clerk

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.

Case: 10-10121 Document: 00511201001 Page: 1 Date Filed: 08/11/2010
No. 10-10121

his claims as frivolous and for failure to state a claim, citing 28 U.S.C.

§§ 1915(e)(2) and 1915A. Byrd filed a timely notice of appeal.

We grant Byrd’s request for leave to file a corrected brief in this court.

Byrd contends that the district court erred in determining that his claims were

frivolous or failed to state a claim without first serving his complaint on the

defendants and hearing an answer from them. A district court, however, may

dismiss a prisoner’s in forma pauperis (IFP) action whenever it properly

determines that the action is frivolous or fails to state a claim, even prior to

service of process. See §§ 1915(e)(2) & 1915A. He also contends that the district

court erred in denying his postjudgment motion to amend his complaint.

Because Byrd’s motion to amend contained facts and arguments that he raised

in his objections to the magistrate judge’s report and recommendation and that

were addressed before the court’s judgment of dismissal, he has not shown that

the district court abused its discretion in denying his motion. See Rosenzweig

v. Azurix Corp., 332 F.3d 854, 865 (5th Cir. 2003); Vielma v. Eureka Co., 218

F.3d 458, 468 (5th Cir. 2000). Byrd’s appeal does not present extraordinary

circumstances that would warrant the appointment of counsel. See Cooper v.

Sheriff, Lubbock Cty., Tex., 929 F.2d 1078, 1085 (5th Cir. 1991). Accordingly, his

motion for the appointment of counsel is denied.

The judgment of the district court is affirmed. The district court’s

dismissal of Byrd’s complaint counts as a strike for purposes of § 1915(g). See

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

if he accumulates three strikes, he will no longer be allowed to 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

§ 1915(g).

JUDGMENT AFFIRMED; MOTION TO FILE CORRECTED BRIEF

GRANTED; MOTION FOR APPOINTMENT OF COUNSEL DENIED;

SANCTION WARNING ISSUED.

2

Case: 10-10121 Document: 00511201001 Page: 2 Date Filed: 08/11/2010