* 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this opinion should not be published and is not precedent except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

October 24, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-41300

Conference Calendar

ROBERT S. DAIL,

Plaintiff-Appellant,

versus

DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

CORRECTIONAL INSTITUTIONS DIVISION; F. E. BOATING; SERGEANT

KUFEJI; MS. HARDY; ASSISTANT WARDEN LUMPKIN; V. KATRAGADDA,

Defendants-Appellees.

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

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 3:04-CV-504 

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

Before JOLLY, DeMOSS, and STEWART, Circuit Judges. 

PER CURIAM:*

Robert S. Dail, Texas prisoner # 750883, appeals the

district court’s dismissal of his 42 U.S.C. § 1983 action as

frivolous. Dail asserts that the district court abused its

discretion when it failed to consider additional material that he

introduced in his objections to the magistrate judge’s second

report and recommendation. Arguably, the district court could

have construed Dail’s objections as a constructive motion for

leave to supplement his § 1983 action. See FED. R. CIV. P. 15(d). 
No. 05-41300

-2-

However, because Dail, a Texas prisoner, had “no constitutional

expectancy of parole,” Malchi v. Thaler, 211 F.3d 953, 957 (5th

Cir. 2000) (internal quotation marks and citation omitted), the

district court did not abuse its discretion when it did not allow

Dail to supplement his § 1983 action to assert that his

disciplinary conviction affected his parole. See Burns v. Exxon

Corp., 158 F.3d 336, 343 (5th Cir. 1998); Doe v. Rains County

Indep. Sch. Dist., 66 F.3d 1402, 1406 (5th Cir. 1995).

Dail also argues that the district court abused its

discretion when it determined that he could not recover nominal

damages. Because Dail failed to establish that his

constitutional rights had been violated, the district court did

not abuse its discretion when it dismissed Dail’s claims that

sought nominal damages. See Martin v. Scott, 156 F.3d 578, 580

(5th Cir. 1998); Doe, 66 F.3d at 1406.

Dail further argues that the district court abused its

discretion when it dismissed his § 1983 claims as frivolous. 

Because Dail’s allegations that the defendants violated his

constitutional rights in relation to his disciplinary conviction

lacked an arguable basis in law, the district court did not abuse

its discretion when it dismissed Dail’s complaint as frivolous. 

See Ruiz v. United States, 160 F.3d 273, 274 (5th Cir. 1998);

Martin, 156 F.3d at 579-80. 

For the reasons set forth above, Dail’s appeal lacks an

arguable basis in law, is without arguable merit, and is
No. 05-41300

-3-

frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.

1983). Because the appeal is frivolous, it is dismissed. See

5TH CIR. R. 42.2. The dismissal of this appeal as frivolous

counts as a strike under 28 U.S.C. § 1915(g), as does the

district court’s dismissal of Dail’s complaint. See Adepegba v.

Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). 

Dail had two prior strikes. Dail v. Cook, No. 3:02-CV-654

(S.D. Tex. Apr. 30, 2004); Dail v. United States, No. 3:00-CV2354 (N.D. Tex. May 22, 2001). Because Dail has accumulated at

least three strikes under § 1915(g), he is barred from proceeding

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 § 1915(g). 

Dail’s motion to preserve evidence is denied.

APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR IMPOSED; MOTION

DENIED.