* 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that this opinion should not be published and is not precedent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. 02-40658

Conference Calendar

 

ANTONIO M. LACY,

Plaintiff-Appellant,

versus

ARTHUR H. VELASQUEZ, Warden, Michael Unit; 

MICHAEL L. STARKEY, Assistant Warden, Michael Unit; 

JAMES YOUNG, Major, Michael Unit; 

KEVIN G. MAYFIELD, Lieutenant, Michael Unit; 

KENNETH PARTIN, Captain, Michael Unit; 

PAMELA KIRKPATRICK; TAMMY HAM; CESAR SAENZ; K. WARD; 

STACEY ARTHUR,

Defendants-Appellees.

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

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 6:01-CV-426

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

December 12, 2002

Before JOLLY, JONES, and WIENER, Circuit Judges.

PER CURIAM:*

Antonio M. Lacy, Texas prisoner # 594575, appeals the

dismissal as frivolous and for failure to state a claim of his

42 U.S.C. § 1983 lawsuit challenging his disciplinary conviction

for attempting to extort $8,000 from a fellow inmate by means of

an altered government document, an order purportedly granting a
No. 02-40658

-2-

writ of habeas corpus. On appeal, Lacy does not renew any of the

numerous claims he raised in his original complaint, and those

claims are therefore waived. Yohey v. Collins, 985 F.2d, 222,

224-25 (5th Cir. 1993). 

Lacy argued below that $7,725, the amount equivalent to the

sum that the charging officer testified was going to be paid to

him in exchange for the false habeas order, was stolen from his

inmate trust account. The district court rejected this claim,

correctly determining that the record showed that Lacy’s account

never actually contained such a sum. Lacy now concedes that his

account never contained $7,725 but argues, for the first time on

appeal, that because there was never a deposit of $7,725, there

was insufficient evidence to convict him of extortion. 

This court will not consider Lacy’s new theory of the case

as it was not first presented to the district court. See Shanks

v. AlliedSignal, Inc., 169 F.3d 988, 993 n.6 (5th Cir. 1999);

Burch v. Coca-Cola Co., 119 F.3d 305, 319 (5th Cir. 1997). Even

if the court were to consider the argument, it is without merit. 

The charging officer’s testimony implicating Lacy in the

extortion attempt, as well as the corroborating documentary

evidence, constitute “some” evidence of Lacy’s guilt sufficient

to support his disciplinary conviction. See Superintendent,

Mass. Correctional Inst., Walpole v. Hill, 472 U.S. 445, 455-56

(1985). 
No. 02-40658

-3-

Lacy’s appeal is wholly without merit, is frivolous, and is

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

(5th Cir. 1983); 5TH CIR. R. 42.2. The district court’s

dismissal of his complaint counts as a “strike” for purposes of

28 U.S.C. § 1915(g), as does this court’s dismissal of the

instant appeal. See Adepegba v. Hammons, 103 F.3d 383, 387

(5th Cir. 1996). This court has also affirmed the dismissal, as

frivolous, of at least one of Lacy’s prior civil rights actions,

which counts as a third strike. See id.; Lacy v. Collins, No.

95-20033 (5th Cir. Aug. 8, 1995)(unpublished). Because Lacy has

accumulated at least three strikes, he may not proceed 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 28 U.S.C. 

§ 1915(g). Lacy is further CAUTIONED to review any pending

appeals to ensure that they do not raise frivolous issues.

APPEAL DISMISSED; THREE-STRIKES BAR IMPOSED.