                                                                                       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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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