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that this opinion should not be published and is not precedent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

July 10, 2003

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-40050

Summary Calendar

 

GERALD DUANE THOMAS,

Plaintiff-Appellant,

versus

ROBERT JENNINGS, Captain, Management 

Training Corp., Diboll Unit,

Defendant-Appellee.

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

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 9:02-CV-220

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

Before DAVIS, WIENER and EMILIO M. GARZA, Circuit Judges

PER CURIAM:*

Gerald Duane Thomas, Texas prisoner #793698, appeals the

district court’s dismissal with prejudice of his civil rights

complaint as frivolous under 28 U.S.C. § 1915. Thomas argues

that the district court erred in denying the discovery motions he

filed before the hearing held pursuant to Spears v. McCotter, 766

F.2d 179 (5th Cir. 1985). The denial of these motions was not an

abuse of discretion. See McGuire v. Sigma Coatings, Inc., 48
No. 03-40050

-2-

F.3d 902, 906 (5th Cir. 1995); Mayo v. Tri-Bell Indus., Inc., 787

F.2d 1007, 1012 (5th Cir. 1986); Feist v. Jefferson County

Comm’rs Court, 778 F.2d 250, 252-53 (5th Cir. 1985). Thomas’

argument that the district court erred in denying the motions he

filed after the entry of the final judgment, namely a motion for

a judgment on the pleadings, a motion for summary judgment, and a

motion for discovery, is also without merit. See Winchester v.

United States Atty. for Southern Dist. of Tex., 68 F.3d 947, 948-

49 (5th Cir. 1995). We also reject Thomas’ argument that the

district court erroneously considered the testimony of Gary West

before the Spears hearing. We find no evidence in the record

that the district court considered testimony from this person.

We review a 28 U.S.C. § 1915(e)(2)(B)(i) dismissal of an in

forma pauperis (IFP) complaint as frivolous for an abuse of

discretion. Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir.

1997). Thomas does not challenge the district court’s summary of

the evidence presented at the Spears hearing. Based upon this

evidence, the district court concluded that Captain Jennings did

not know Thomas faced a substantial risk of serious harm from his

cell mate. The district court’s dismissal of Thomas’s civil

rights complaint was not an abuse of discretion.

Thomas’s appeal is without arguable merit and is 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.
No. 03-40050

-3-

R. 42.2. The dismissal of this appeal as frivolous and the

district court’s dismissal of this lawsuit as frivolous

constitute two strikes for purposes of the 28 U.S.C. § 1915(g)

bar. Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996). We

caution Thomas that once he accumulates three strikes, he may not

proceed 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). 

DISMISSED AS FRIVOLOUS; WARNING ISSUED.