*

 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. 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 officials of the Texas Department of Criminal Justice as frivolous. We

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

(5th Cir. 1992).
Burrellhas not alleged the requisite actual injury to support a First Amendment violation. See

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 constitutionalrightsthrough a conspiracy under the Racketeer

Influenced and Corrupt Organization Act. The claim involves factual issues that 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 exercising 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. See 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 portion of those claims by failing to adequately

brief his arguments. See 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. See 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 Burrell that, in light of Ellis v. Burrell, No. 95-40333 (5th Cir. Oct. 19, 1995)

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

under the provisions of 28 U.S.C. § 1915(g). See 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.