          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                  Fifth Circuit

                                                                 FILED
                                                                April 21, 2008
                               No. 07-30462
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

ANTHONY LEON GREENHILL
                                          Plaintiff-Appellant

v.

UNITED STATES OF AMERICA, on behalf of Federal Bureau of Prisons;
MARK EDENFIELD; JENNA EPPLIN; FEDERAL BUREAU OF PRISONS;
CORRECTIONAL OFFICER HUNT; D LAIR; CORRECTIONAL LIEUTENANT
MELTON

                                          Defendants-Appellees


                 Appeal from the United States District Court
                    for the Western District of Louisiana
                           USDC No. 1:06-CV-473


Before STEWART, OWEN and SOUTHWICK, Circuit Judges.
PER CURIAM:*
      Anthony Leon Greenhill, federal prisoner # 56411-097, appeals the district
court’s dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), (ii) of a complaint
seeking damages under the Federal Tort Claims Act (FTCA) and Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
As the initial notice of appeal filed by Greenhill was untimely, we remanded to


      *
      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should not be published and is not precedent except under the limited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. 07-30462

the district court, which reopened the case and held that Greenhill’s notice of
appeal should be deemed timely. Greenhill now requests that we take judicial
notice of an appellate brief that he submitted to this court prior to the district
court’s determination that the appeal was timely. We construe Greenhill’s
request as a motion to file a supplemental brief and grant the motion.
      Greenhill’s complaint alleged that he was denied a transfer to a different
prison due to a mistake in calculating his custodial status; that, in retaliation for
Greenhill’s in forma pauperis filing of a habeas corpus petition, defendant Hunt
stole postage stamps from Greenhill’s locker; and that the theft of the stamps
deprived Greenhill of access to the courts. Greenhill sought monetary damages
for the stolen stamps under the FTCA.
      The district court held that the complaint was frivolous and that it failed
to state a claim for relief.      The court concluded that Greenhill had no
constitutional right to be transferred to another prison; that, assuming Greenhill
could prove the conclusory allegation that his stamps were stolen, he had alleged
no facts from which retaliation could be inferred; that Greenhill’s claim that he
was denied access to the courts failed because he did not allege that he was
prejudiced by the alleged theft of the stamps; and that his claim for damages
under the FTCA was frivolous. We note that Greenhill has abandoned any
appellate challenge to the dismissal of his FTCA claims by failing to address the
issue in his appellate brief. Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.
1993).
      We review the district court’s determination that the complaint was
frivolous for abuse of discretion and review de novo the determination that the
complaint failed to state a claim. Berry v. Brady, 192 F.3d 504, 507 (5th Cir.
1999). A complaint is frivolous if it lacks an arguable basis in fact or law.’” Id.
(quoting Talib v. Gilley, 138 F.3d 211, 213 (5th Cir.1998)). A complaint fails to
state a claim when it does not contain “enough facts to state a claim to relief that
is plausible on its face.” Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2007).

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                                    No. 07-30462

       Greenhill attempts to refute the determination that he did not allege facts
supporting his claims of retaliation and denial of access to the courts by
requesting to incorporate the arguments raised in his district court pleadings.
This he may not do. Yohey, 985 F.2d at 224-25. Greenhill argues on appeal that
retaliation may be inferred from the fact that Officer Hunt did not search a
locker belonging to Greenhill’s cellmate. Assuming that this allegation is
correct, it is insufficient to support a inference of retaliation. See Johnson v.
Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997). We agree with the district court’s
evaluation of the claims raised in Greenhill’s complaint. See Berry, 192 F.3d at
507.
       In his appellate brief, Greenhill argues for the first time that he is entitled
to relief based on an allegedly retaliatory termination of his prison employment.
He asserts that he made a factual error when he stated in his district court
pleadings that he did not seek relief on this basis. We decline to consider this
factual argument. See Greenberg v. Crossroads Sys., Inc., 364 F.3d 657, 669 (5th
Cir. 2004).
       Accordingly, we affirm the district court’s dismissal of the complaint.
Berry, 192 F.3d at 507. The district court’s dismissal of Greenhill’s complaint
counts as a strike for purposes of 28 U.S.C. § 1915(g).            See Adepegba v.
Hammons, 103 F.3d 383, 385-87 (5th Cir. 1996). Greenhill is cautioned 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 § 1915(g).
       MOTION TO FILE SUPPLEMENTAL BRIEF GRANTED; AFFIRMED;
SANCTION WARNING ISSUED.




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