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that this opinion should not be published and is not precedent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

January 5, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-50647

Summary Calendar

 

MARCELINO MARTINEZ,

Plaintiff-Appellant,

versus

FNU AMBRIZ; FNU MORALES; FNU CARRILLO; FNU

FENNER; FNU HINKLE; FNU LUEVA; FNU GONZALEZ;

JOHN DOE, Parole Officer; FNU GARRISON; FNU ORTIZ;

FNU GARCIA; FNU ANDERSON; JOHN DOE, S. C. C.; JOHN

DOE, B. O. C.,

Defendants-Appellees.

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

Appeals from the United States District Court

for the Western District of Texas

USDC No. SA-03-CV-319

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

Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM:*

Marcelino Martinez, Texas prisoner #526628, appeals the

district court’s judgment, dismissing his civil rights claims,

seeking compensatory and injunctive relief, against personnel at

the Connally Unit of the TDCJ-ID for failure to state a claim

upon which relief could be granted and transferring his remaining

claims against personnel at the Smith Unit of the TDCJ-ID to the
No. 03-50647

-2-

Northern District of Texas. See 42 U.S.C. § 1983; 28 U.S.C.

§ 1915(e)(2)(B)(ii). We lack jurisdiction to review the district

court’s order transferring venue of the claims against the Smith

Unit personnel. See Enplanar, Inc. v. Marsh, 11 F.3d 1284, 1298

(5th Cir. 1994). 

We review a dismissal for failure to state a claim under 28

U.S.C. § 1915(e)(2)(b)(ii) under the de novo standard of review.

Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir. 1999). We

conclude that the district court did not err in dismissing

Martinez’s claim that Grievance Investigator Sanches failed to

protect him from other inmates by refusing to remove him from

administrative segregation. See Neals v. Norwood, 59 F.3d 530,

533 (5th Cir. 1995). The district court’s dismissal of

Martinez’s denial of access to courts and retaliation claims

against Ms. Artiz, Major Carillo, Captain Hinkle, and Mr. Fenner

and his claim of supervisory liability against Warden Morales

also was not error. See Lewis v. Casey, 518 U.S. 343, 351

(1996); Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997);

Thompkins v. Belt, 828 F.2d 298, 303-04 (5th Cir. 1987). We do

not consider the merits of the claims against the Smith Unit

personnel which have been transferred to the Northern District of

Texas or the claims that implicate the liability of individuals

not named as defendants in this lawsuit.

The district court did not abuse its discretion in denying

Martinez’s motion for appointment of counsel, and it did not err
No. 03-50647

-3-

in not holding an evidentiary hearing. See Cupit v. Jones, 835

F.2d 82, 86 (5th Cir. 1987); Wesson v. Oglesby, 910 F.2d 278, 281

(5th Cir. 1990). 

Because Martinez’s appeal is without arguable merit, it is

DISMISSED as frivolous. See Howard v. King, 707 F.2d 215, 219-20

(5th Cir. 1983); 5TH CIR. R. 42.2. This 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 Martinez’s complaint for

failure to state a claim. See Adepegba v. Hammons, 103 F.3d 383,

385-88 (5th Cir. 1996). Martinez is warned that if he

accumulates three strikes, he will not be able to proceed in

forma pauperis (IFP) 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 28 U.S.C.

§ 1915(g). Martinez’s motions for an injunction pending appeal

and for appointment of counsel are DENIED. Given that the

district court has granted Martinez permission to proceed IFP on

appeal, his IFP motion before this court is also DENIED.

APPEAL DISMISSED; THREE-STRIKES WARNING ISSUED; ALL MOTIONS

DENIED.