Filed: Aug. 23, 2001
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 01-40374 Conference Calendar ROGER EUGENE GRESHAM, Plaintiff-Appellant, versus NUECES COUNTY SHERIFF’S DEPARTMENT, Defendant-Appellee. - - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. C-00-CV-426 - - - - - - - - - - August 22, 2001 Before KING, Chief Judge, and POLITZ and PARKER, Circuit Judges. PER CURIAM:* Roger Eugene Gresham, a federal prisoner (# 29072-077), appeals th
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 01-40374 Conference Calendar ROGER EUGENE GRESHAM, Plaintiff-Appellant, versus NUECES COUNTY SHERIFF’S DEPARTMENT, Defendant-Appellee. - - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. C-00-CV-426 - - - - - - - - - - August 22, 2001 Before KING, Chief Judge, and POLITZ and PARKER, Circuit Judges. PER CURIAM:* Roger Eugene Gresham, a federal prisoner (# 29072-077), appeals the..
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-40374
Conference Calendar
ROGER EUGENE GRESHAM,
Plaintiff-Appellant,
versus
NUECES COUNTY SHERIFF’S DEPARTMENT,
Defendant-Appellee.
- - - - - - - - - -
Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-00-CV-426
- - - - - - - - - -
August 22, 2001
Before KING, Chief Judge, and POLITZ and PARKER, Circuit Judges.
PER CURIAM:*
Roger Eugene Gresham, a federal prisoner (# 29072-077),
appeals the district court’s order dismissing his 42 U.S.C.
§ 1983 civil rights and civil RICO, 18 U.S.C. § 1964(c),
complaint as frivolous and for failure to state a claim upon
which relief may be granted, pursuant to 28 U.S.C. § 1915A(b).
Gresham sued the Nueces County (Tex.) Sheriff’s Department
(“NCSD”) based on its failure to obey a federal district court
order directing that he be returned to federal prison upon the
completion of a state proceeding on a motion to revoke Gresham’s
probation.
*
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that this opinion should not be published and is not precedent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.
No. 01-40374
-2-
By failing to make relevant arguments and record citations
in his appellate brief, Gresham has effectively abandoned his
claim that the NCSD violated his constitutional right of access
to the courts. See Yohey v. Collins,
985 F.2d 222, 224-25 (5th
Cir. 1993); FED. R. APP. P. 28(a)(9).
Gresham’s civil RICO claim against the NCSD is frivolous
because he has not alleged that a “pattern of racketeering
activity” occurred nor has he shown that the NCSD, as the named
defendant, was separate and distinct from a RICO “enterprise.”
See Sedima, S.P.R.L. v. Imrex Co.,
473 U.S. 479, 481 (1985); Word
of Faith World Outreach Center Church, Inc. v. Sawyer,
90 F.3d
118, 122 (5th Cir. 1996); Ashe v. Corley,
992 F.2d 540, 544 (5th
Cir. 1993); 18 U.S.C. §§ 1964(c), 1962. The district court did
not err in concluding that such claim was frivolous under 28
U.S.C. § 1915A(b). See Ruiz v. United States,
160 F.3d 273, 275
(5th Cir. 1998).
Because Gresham’s appeal is without arguable merit, the
appeal is DISMISSED as frivolous. 5TH CIR. R. 42.2; see Howard v.
King,
707 F.2d 215, 219-20 (5th Cir. 1983). The dismissal of the
instant appeal as frivolous and the district court’s dismissal of
his civil rights complaint under 28 U.S.C. § 1915A(b) each count
as a “strike” under the three-strikes provision of 28 U.S.C.
§ 1915(g). See Adepegba v. Hammons,
103 F.3d 383, 387 (5th Cir.
1996). Gresham is cautioned that, once he accumulates three
strikes, he may not proceed in forma pauperis in any civil action
or appeal filed while he is incarcerated or detained in any
No. 01-40374
-3-
facility unless he is under imminent danger of serious physical
injury. See 28 U.S.C. § 1915(g).
APPEAL DISMISSED; SANCTION WARNING ISSUED.