*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opinion should not be published and is not precedent except under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.

United States Court of Appeals

Fifth Circuit

FILED

March 20, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-40972

Summary Calendar

BILLY RELL MILES,

Plaintiff-Appellant,

versus

JAMES ZELLER; DOUG DRETKE,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:04-CV-509

Before GARWOOD, HIGGINBOTHAM and DAVIS, Circuit Judges.

PER CURIAM:*

Billy Rell Miles, Texas prisoner # 695744, appeals from the

dismissal of his 42 U.S.C. § 1983 complaint as time-barred and, in

the alternative, as frivolous and for failure to state a claim

pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), (ii). He makes the

following arguments: (1) the two-year limitations period for filing

his section 1983 complaint was equitably tolled during the period
2

he sought relief in Texas state court; (2) the district court erred

in dismissing the complaint as frivolous and for failure to state

a claim; (3) he was denied an evidentiary hearing; and (4) the

district court erroneously deemed the defendants immune from

monetary relief.

There is no Texas or federal authority to suggest that Miles

could not have filed a section 1983 suit if he did not first

exhaust his state court remedies. Therefore, the pendency of his

Texas state lawsuit does not merit equitable tolling since it

sought a remedy that he need not have pursued. Cf. Holmes v. Texas

A&M Univ., 145 F.3d 681, 684-85 (5th Cir. 1998).

Miles argues that his complaint should not have been dismissed

as frivolous because he had paid a portion of the filing fee.

Under the Prison Litigation Reform Act, however, “[n]otwithstanding

any filing fee, or any portion thereof, that may have been paid,

the court shall dismiss the case at any time if the court

determines that . . . the action . . . is frivolous.” §

1915(e)(2)(B)(i), (ii) (emphasis added). Miles has therefore not

shown the district court’s section 1915(e)(2)(B)(i) dismissal to be

an abuse of discretion. See Siglar v. Hightower, 112 F.3d 191, 193

(5th Cir. 1997).

With regard to his failure to state a claim, Miles’s complaint

failed to allege facts that would show that his ability to pursue

a “nonfrivolous,” “arguable” legal claim was hindered by the
1 Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985). 

3

alleged unconstitutional actions of the defendants. See

Christopher v. Harbury, 536 U.S. 403, 415 (2002) (internal

quotations omitted). Therefore, the section 1915(e)(2)(B)(ii)

dismissal was also appropriate. See Harris v. Hegmann, 198 F.3d

153, 156 (5th Cir. 1999).

The record discloses that the magistrate judge did not deny

Miles an evidentiary hearing; the magistrate judge ordered Miles

pursuant to Spears1 to submit a more definite statement; held, in

accordance with Spears, a telephonic evidentiary hearing; and Miles

amended his complaint. There was no abuse of discretion. E.g.,

Eason v. Thaler, 14 F.3d 8, 10 (5th Cir. 1994). Finally, Miles’s

argument that the district court erroneously dismissed the suit

pursuant to 42 U.S.C. § 1997e(c) on the basis of the defendants’

immunity is also not supported by the record.

Miles’s appeal lacks arguable merit and is therefore dismissed

as frivolous. See 5TH CIR. R. 42.2; Howard v. King, 707 F.2d 215,

219-20 (5th Cir. 1983). Miles is cautioned that the dismissal of

this appeal as frivolous counts as a strike for purposes of 28

U.S.C. § 1915(g), in addition to the strike for the district

court’s dismissal. See Adepegba v. Hammons, 103 F.3d 383, 388 (5th

Cir. 1996). Miles is further cautioned that if he accumulates

three strikes under section 1915(g), he will not be able to proceed
4

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 section 1915(g).

APPEAL DISMISSED; SANCTIONS WARNING ISSUED.