*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opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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 period2

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 the1 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 di strict 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 proceed4

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.