     Case: 16-30071      Document: 00514009045         Page: 1    Date Filed: 05/26/2017




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

                                    No. 16-30071
                                                                                     Fifth Circuit

                                                                                   FILED
                                  Summary Calendar                             May 26, 2017
                                                                              Lyle W. Cayce
RICHARD W. BLACK,                                                                  Clerk


                                                 Plaintiff-Appellant

v.

VAN H. KYZAR; DAVID CHEATWOOD; PATRICK RELIFORD; VICTOR
JONES,

                                                 Defendants-Appellees


                  Appeals from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:15-CV-2411


Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *
       While confined in the Natchitoches Parish Detention Center as a pretrial
detainee under prisoner # 2010012092, Richard W. Black filed a pro se 42
U.S.C. § 1983 action against Van H. Kyzar, the Natchitoches Parish District
Attorney; David Cheatwood, an employee of the Natchitoches Parish Sheriff’s
Office; Patrick Reliford, an employee of the Natchitoches Parish Probation 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 16-30071

Parole Office; and Victor Jones, the Natchitoches Parish Sheriff. Black appeals
the district court’s sua sponte dismissal of his complaint pursuant to 28 U.S.C.
§ 1915(e)(2)(B) and 28 U.S.C. § 1915A. Among other reasons for dismissing
the complaint, the district court reasoned that Black’s claims were untimely
under the applicable one-year statute of limitations.
      On appeal, Black reiterates the allegations in his complaint that
documents from as early as 1992 demonstrated that he was not required to
register as a sex offender; Reliford wrongfully forced him to register as a sex
offender on or about November 7, 2011; Kyzar wrongfully filed a bill of
information on or about June 7, 2012, charging Black with failure to register
as a sex offender; and Cheatwood signed a legal document on or about June 7,
2012, in which Cheatwood made a false statement about a prior revocation of
Black’s probation or parole.    Black contends that the defendants’ actions
constituted a number of crimes and violated Louisiana rules of court. Citing
Crane v. State of Texas, 759 F.2d 412 (5th Cir. 1985), Black also contends that
the defendants are not immune from his claims because they can be sued
through the parish.
      Black does not brief any argument in his opening brief challenging the
district court’s determination that his § 1983 complaint was time barred.
Although he does contest the issue of untimeliness in his reply brief, we do not
consider arguments raised for the first time in a reply brief. See Yohey v.
Collins, 985 F.2d 222, 225 (5th Cir. 1993). By failing to challenge in his
opening brief the district court’s determination that his § 1983 complaint was
untimely, Black has waived the issue. See Hannah v. United States, 523 F.3d
597, 600 n.1 (5th Cir. 2008); Yohey, 985 F.2d at 225. Accordingly, we affirm
the judgment of the district court dismissing Black’s § 1983 action.




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      Also before the court is Black’s motion for all documents concerning any
conviction and sentence he sustained in the Tenth Judicial District Court of
Natchitoches Parish. We may not consider evidence submitted for the first
time on appeal. Theriot v. Parish of Jefferson, 185 F.3d 477, 491 n.26 (5th Cir.
1999). The motion is denied.
      A prisoner is not eligible to proceed in forma pauperis (IFP) in a civil
action or on appeal from a judgment in a civil action if he has on three or more
prior occasions, while incarcerated or detained in a facility, “brought an action
or appeal in a court of the United States that was dismissed on the grounds
that it is frivolous, malicious, or fails to state a claim upon which relief may be
granted, unless the prisoner is under imminent danger of serious physical
injury.” § 1915(g). For purposes of § 1915(g), a “prisoner” includes “any person
incarcerated or detained in any facility who is accused of, convicted of,
sentenced for, or adjudicated delinquent for, violations of criminal law.”
§ 1915(h).
      The district court’s dismissal in this case counts as one strike under
§ 1915(g). See § 1915(h); Coleman v. Tollefson, 135 S. Ct. 1759, 1763 (2015);
Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996). While Black was an
inmate or pretrial detainee in Louisiana under prisoner # 121276, he filed at
least two other civil actions that were dismissed by the district court as
frivolous and/or for failure to state a claim upon which relief may be granted:
Black v. Wilkinson, No. 1:09-CV-1966 (W.D. La. Mar. 2, 2010), and Black v.
Scallion, No. 1:14-CV-2466 (W.D. La. Feb. 9, 2015). Black did not appeal either
case, and each of those cases counts as one strike under § 1915(g).            See
Coleman, 135 S. Ct. at 1763; Adepegba, 103 F.3d at 388.
      Because Black has accumulated at least three strikes under § 1915(g),
he is now barred from proceeding IFP in any civil action or appeal filed while



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he is incarcerated or detained in any facility unless he is under imminent
danger of serious physical injury.     See § 1915(g).     Black is warned that
frivolous, repetitive, or otherwise abusive filings will invite the imposition of
additional sanctions, which may include dismissal, monetary sanctions, and
restrictions on his ability to file pleadings in this court and any court subject
to this court’s jurisdiction. Black is further warned that he should review any
pending appeals and actions and move to dismiss any that are frivolous.
      AFFIRMED; MOTION FOR DOCUMENTS DENIED; § 1915(g) BAR
IMPOSED; SANCTION WARNING ISSUED.




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