                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                    September 28, 2004

                                                               Charles R. Fulbruge III
                                                                       Clerk
                               No. 04-40632
                             Summary Calendar



                               GERALD CAIN,

                                                     Plaintiff-Appellant,

                                  versus


         AMBRIZ, Captain; GRIEVANCE STAFF, MCCONNELL UNIT,

                                                    Defendants-Appellees.



            Appeal from the United States District Court
                 for the Southern District of Texas
                         USDC No. 2:04-CV-96


Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:*

           Gerald Cain, Texas inmate # 812200, appeals the dismissal

of his civil rights action filed under 42 U.S.C. § 1983.                 Cain

challenges the magistrate judge’s determination that he failed to

state a claim of either retaliation or excessive use of force

against defendant Capt. Ambriz.        He also challenges the district

court’s dismissal without prejudice of his retaliation claims




     *
            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opinion should not be published and is not precedent except under the limited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.
against members of the McConnell Unit grievance staff for failure

to state a claim.

              On appeal, Cain concedes that he defied repeated requests

from Capt. Ambriz that Cain step back into his cell.               Cain remained

in his doorway and Capt. Ambriz was unable to close Cain’s cell

door.      The action taken by Capt. Ambriz, using his open hand to

push Cain’s face and force him into his cell, was not objectively

unreasonable given Cain’s admitted refusal to comply with Capt.

Ambriz’ requests.        We therefore conclude that Cain’s allegations

did not state a claim for excessive use of force against Capt.

Ambriz.      See Hudson v. McMillian, 503 U.S. 1, 6-7 (1992); Williams

v. Bramer, 180 F.3d 699, 703 (5th Cir. 1999).

              The     magistrate    judge    rejected     Cain’s    claim    that

Capt.      Ambriz’s    act   of   striking   Cain   was   a   retaliatory    act.

At his Spears1 hearing, Cain stated that he did not believe that

Capt. Ambriz struck him in retaliation for filing grievances

against Capt. Ambriz.         Instead, Cain stated that he believed that

Capt. Ambriz simply did not like inmates.              Because Cain’s allega-

tions did not show that Capt. Ambriz intended to retaliate against

Cain for exercising a constitutional right, his complaint failed to

state a claim of retaliation against Capt. Ambriz.              See McDonald v.

Steward, 132 F.3d 225, 231 (5th Cir. 1998); Woods v. Smith, 60 F.3d

1161, 1164 (5th Cir. 1995).


     1
              The record on appeal does not contain any tapes or transcripts of the
hearing.

                                         2
           The magistrate judge dismissed without prejudice Cain’s

claims of retaliation against members of the prison unit grievance

staff because Cain was unable to identify any individual members of

the grievance staff and because his allegations of motive were

based solely on his personal beliefs.            On appeal, Cain does not

argue that the magistrate judge’s dismissal of his claims was

improper given the information available in the district court.

Instead, Cain has named several members of the grievance staff that

he considers to be defendants in the case and he has made specific

factual allegations relating to those newly-named individuals. The

Federal Rules of Appellate Procedure do not permit Cain to amend

his original complaint in this appeal.                If Cain wishes to make

specific allegations of retaliation against individual members of

the McConnell Unit grievance staff, he should re-file his claims.

See   Gartrell   v.    Gaylor,   981    F.2d   254,     256   (5th    Cir.      1993)

(applicable statute of limitations in Texas is two years).

           The dismissal of Cain’s complaint for failure to state a

claim is AFFIRMED.         The district court’s dismissal of Cain’s

complaint counts as a strike for purposes of 28 U.S.C. § 1915(g).

See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).

Cain is WARNED that if he accumulates three strikes, he may not

proceed in forma pauperis in any civil action or appeal 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).

                                        3
AFFIRMED; SANCTION WARNING ISSUED.




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