Filed: May 06, 2003
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D May 6, 2003 IN THE UNITED STATES COURT OF APPEALS Charles R. Fulbruge III FOR THE FIFTH CIRCUIT Clerk No. 02-41463 Summary Calendar DAVID ARRON HERNANDEZ, Plaintiff-Appellant, versus CAL WOOTEN, SR.; HARRELL, Captain; FILLMORE, Lieutenant, Defendants- Appellees. - Appeal from the United States District Court for the Southern District of Texas USDC No. G-00-CV-79 - Before JONES, STEWART and DENNIS, Circuit Judges. PER CURIAM:* David Arron Her
Summary: United States Court of Appeals Fifth Circuit F I L E D May 6, 2003 IN THE UNITED STATES COURT OF APPEALS Charles R. Fulbruge III FOR THE FIFTH CIRCUIT Clerk No. 02-41463 Summary Calendar DAVID ARRON HERNANDEZ, Plaintiff-Appellant, versus CAL WOOTEN, SR.; HARRELL, Captain; FILLMORE, Lieutenant, Defendants- Appellees. - Appeal from the United States District Court for the Southern District of Texas USDC No. G-00-CV-79 - Before JONES, STEWART and DENNIS, Circuit Judges. PER CURIAM:* David Arron Hern..
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United States Court of Appeals
Fifth Circuit
F I L E D
May 6, 2003
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
No. 02-41463
Summary Calendar
DAVID ARRON HERNANDEZ,
Plaintiff-Appellant,
versus
CAL WOOTEN, SR.; HARRELL, Captain;
FILLMORE, Lieutenant,
Defendants-
Appellees.
-------------------------------------------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. G-00-CV-79
--------------------------------------------------------
Before JONES, STEWART and DENNIS, Circuit Judges.
PER CURIAM:*
David Arron Hernandez, Texas prisoner # 646920, appeals the 28 U.S.C. § 1915(e)(2)(B)
dismissal as frivolous of his 42 U.S.C. § 1983 civil rights lawsuit. He renews his failure-to-protect
and excessive-force claims but briefs no argument regarding his claims that he was retaliated against,
that he was discriminated against, or that the appellees’ conduct violated his due-process rights and
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
the Ruiz consent decree, and those claims are waived. See Yohey v. Collins, 985 F.2d 222, 224-25
(5th Cir. 1993).
The district court did not abuse its discretion in dismissing Hernandez’s claims as frivolous.
The failure-to-protect claim fails because Hernandez alleged no resulting physical injury. See
Jones v. Greninger, 188 F.3d 322, 326 (5th Cir. 1999). The
excessive-force claim fails because Hernandez alleged only that he
had been handcuffed too tightly, resulting in pain and swelling;
there was no allegation that the handcuffs were applied with the
intent to cause him pain or that he was subjected to any force
other than the handcuffing. See Glenn v. City of Tyler,
242 F.3d 307, 314 (5th Cir.
2001).
Hernandez’s appeal is without arguable 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 counts as one strike for
purposes of 28 U.S.C. § 1915(g), and this court’s dismissal of the
instant appeal counts as a second strike. See Adepegba v. Hammons,
103 F.3d 383, 387-88 (5th Cir. 1996). Hernandez is CAUTIONED that
if 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 facility unless he is under
imminent danger of serious physical injury. See 28 U.S.C. §
1915(g).
APPEAL DISMISSED; THREE-STRIKES WARNING ISSUED.
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