* 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that this opinion should not be published and is not precedent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. 99-40043

Summary Calendar

 

EDDIE W. MARTIN, JR.,

Plaintiff-Appellant,

versus

ORLANDO PEREZ ET AL.,

Defendants,

ORLANDO PEREZ; WILLIAM A. BOOTHE; DOMINGO CARRILLO;

ERNEST J. DELBOSQUE; PABLO GARZA; LOUIS CARRILLO;

RAFAEL MENCHACCA,

Defendants-Appellees.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. C-98-CV-312

--------------------

December 9, 1999

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Eddie W. Martin, Jr., Texas prisoner #651314, proceeding pro

se and in forma pauperis (IFP) appeals the district court’s

dismissal as frivolous of his 42 U.S.C. § 1983 complaint. Martin

contends that the defendants retaliated against him for

exercising his First Amendment right of access to the court. 
No. 99-40043

-2-

Martin also contends that the magistrate judge was biased against

him and demonstrated personal knowledge of the facts of his case.

We review the district court’s dismissal of an IFP complaint

as frivolous for an abuse of discretion. Siglar v. Hightower,

112 F.3d 191, 193 (5th Cir. 1997). Martin’s conclusional

allegations, based on his personal belief, that the defendants

acted with retaliatory intent are insufficient to establish a

claim of retaliation. See Johnson v. Rodriguez, 110 F.3d 299,

310 (5th Cir.), cert. denied, 118 S. Ct. 559 (1997); Whittington

v. Lynaugh, 842 F.2d 818, 819 (5th Cir. 1988). Martin’s

allegations of bias and improper personal knowledge of the facts

of his case are conclusional and unsupported. The district

court’s judgment is AFFIRMED.

This is not the first complaint or appeal filed by Martin

that has been dismissed as frivolous. A prisoner may not

bring a civil action or appeal a judgment in

a civil action or proceeding under this

section if the prisoner has, on 3 or more

prior occasions, while incarcerated or

detained in any facility, brought an action

or appeal in a court of the United States

that was dismissed on the grounds that it is

frivolous, malicious, or fails to state a

claim upon which relief may be granted,

unless the prisoner is under imminent danger

of serious physical injury.

28 U.S.C. § 1915(g).

Martin now has three "strikes." See Adepegba v. Hammons,

103 F.3d 383, 386-88 (5th Cir. 1996). The district court’s

dismissal for failure to state a claim of a prior § 1983

complaint by Martin and this court’s dismissal as frivolous of

the appeal of that dismissal count as two strikes. See Martin v.
No. 99-40043

-3-

Martin, No. 97-10218 (5th Cir. Jan. 15, 1998)(loose papers, green

tab); Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996)(both

the dismissal in the district court as frivolous and the separate

dismissal of the appeal count as strikes). This court’s

affirmance of the district court’s dismissal as frivolous of

Martin’s complaint in the instant case is Martin’s third strike. 

See Martin v. Perez, No. C-98-312 (S.D. Tex. Nov. 16, 1998);

Adepegba, 103 F.3d at 387(affirmance of district court’s

dismissal as frivolous counts as a single strike).

Except for cases involving an imminent danger of serious

physical injury, Martin is BARRED under § 1915(g) from proceeding

further under § 1915 while he is incarcerated. 

AFFIRMED; 28 U.S.C. § 1915(g) BAR ORDERED.