* Pursuant to 5 TH C IR

. 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 5 TH C IR

. R. 47.5.4. IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-41176

Summary Calendar

ELLIS BURRELL,

Plaintiff-Appellant,

versus

STORK, DR; A. COLLINS;

WAYNE SCOTT; LESLIE WOODS; DAVIS,,

Defendants-Appellees.

_____________________________________

Appeal from the United States District Court

for the Southern District of Texas

USDC No. C-94-CV-386

______________________________________

March 23, 1998

Before JONES, SMITH and STEWART, Circuit Judges.

PER CURIAM: *

Ellis Burrell, Texas prisoner # 336498, appeals the judgment of the district court dismissing

his civil rights action against o fficials of the Texas Department of Criminal Justice as frivolous. We

conclude that there was no abuse of discretion. S ee Ancar v. Sara Plasma, Inc. , 964 F.2d 465, 468

(5th Cir. 1992).Burrell has not alleged the requisite actual injury to support a First Amendment violation. S ee

Lewis v. Casey

, 116 S. Ct. 2174, 2180 (1996). He does not contend that he experienced a delay or

that he was unable t o pursue any action in the courts. We do not review for plain error Burrell’s

claim that the defendants violated his constitutional rights through a conspiracy under the Racketeer

Influenced and Corrupt Organization Act. The claim involves factual issues t hat could have been

resolved by the district court. See United States v. Vital , 68 F.3d 114, 119 (5th Cir. 1995). As to

his claims that he was transferred and classified in retaliation for exerc ising his First Amendment

rights and in violation of the Eighth Amendment prohibition against cruel and unusual punishment

and that he was deprived of adequate medical attention for an ear infection, Burrell has not alleged

that any of the named defendants were personally involved or identified a policy or custom that could

have led to the constitutional violations. S ee Thompkins v. Belt

, 828 F.2d 298, 303 (5th Cir. 1987).

Burrell’s contentions that his rights under the Due Process Clause and the Equal Protection Clause

were violated are unavailing. He has abandoned a porti on of those claims by failing to adequately

brief his arguments. S ee Brinkmann v. Dallas County Deputy Sheriff Abner

, 813 F.2d 744, 748 (5th

Cir. 1987). Further he has not demonstrated that the magistrate judge discriminated against him and

obstructed justice in not holding a hearing pursuant to Spears v. McCotter

, 766 F.2d 179, 182 (5th

Cir. 1985).

The dismissal of the civil rights complaint as frivolous was not an abuse of discretion. The

appeal too is without arguable merit and, thus, frivolous. S ee Howard v. King

, 707 F.2d 215, 219-

20 (5th Cir. 1983). Because the appeal is frivolous, it is DISMISSED. 5th Cir. R. 42.2. The

motions for appointment of counsel, a temporary restraining order, and a preliminary injunction are

DENIED.We advise Burrel l that, in light of E llis v. Burrell

, No. 95-40333 (5th Cir. Oct. 19, 1995)

(appeal dismissed as frivolous), the dismissal of t his appeal as frivolous constitutes his third strike

under the provisions of 28 U.S.C. § 1915(g). S ee Carson v. Johnson , 112 F.3d 818, 819 (5th Cir.

1997) (citing Adepegba v. Hammons , 103 F.3d 383, 385 (5th Cir. 1996)).

APPEAL DISMISSED; MOTIONS DENIED.