     Case: 17-20357      Document: 00514378089         Page: 1    Date Filed: 03/08/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                       United States Court of Appeals

                                    No. 17-20357
                                                                                Fifth Circuit


                                  Summary Calendar
                                                                              FILED
                                                                          March 8, 2018
                                                                         Lyle W. Cayce
RICHARD N. TAWE,                                                              Clerk

                                                 Plaintiff-Appellant

v.

CLEMONS, Mailroom Clerk; UNKNOWN MAILROOM CLERK; UNKNOWN
BEEVILLE POST OFFICE CLERK; UNKNOWN POST OFFICE CLERK
DALLAS; JOHN F. WARREN, Clerk Northern District Court,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:17-CV-187


Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Plaintiff-Appellant Richard N. Tawe, Texas prisoner # 1596960, appeals
the district court’s dismissal of his 42 U.S.C. § 1983 suit for failure to state a
claim on which relief can be granted, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
Tawe states that he mailed a letter to defendant John F. Warren at an address
for the Northern District of Texas; that the letter requested information


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-20357

concerning the dismissal of two prior civil suits that he filed in the Northern
District of Texas; that he needed that information to file a procedurally proper
and timely civil rights suit in state court; that the defendants conspired to
retaliate against him for exercising his right to access to courts by holding onto
that mail for almost four months; and that the delay in the return of his
unanswered letter, which was marked return to sender for an insufficient
address, prevented him from filing a civil rights suit in state court.          He
contends that the defendants’ actions violated his rights under the First,
Fourth, Sixth, and Fourteenth Amendments and that the defendants’
deliberate indifference to his right to access of courts constituted cruel and
unusual punishment in violation of the Eighth Amendment.              We will not
consider his Fourth and Sixth Amendment claims as those claims were not
raised before the district court. See Leverette v. Louisville Ladder Co., 183 F.3d
339, 342 (5th Cir. 1999).
      We review dismissals for failure to state a claim under § 1915(e)(2)(B)(ii)
de novo. Legate v. Livingston, 822 F.3d 207, 209-10 (5th Cir.), cert. denied by
Legate v. Collier, 137 S. Ct. 489 (2016). “Under that standard, a complaint will
survive dismissal for failure to state a claim if it contains sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.”
Legate, 822 F.3d at 210 (internal quotation marks and citation omitted).
      The district court did not err in denying Tawe’s claims pursuant to
§ 1915(e)(2)(B)(ii). See Bounds v. Smith, 430 U.S. 817, 822 (1977); Legate, 822
F.3d at 210-11; Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995); Cinel v.
Connick, 15 F.3d 1338, 1343 (5th Cir. 1994). Tawe does not dispute the district
court’s judicial notice of the fact that Warren is the Dallas County Clerk, not
the clerk of court for the Northern District of Texas. Thus, Tawe’s mail was
not properly addressed to Warren at the Dallas County Clerk’s Office or to



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                                  No. 17-20357

someone in the clerk’s office for the Northern District of Texas. Second, Tawe
concedes that, after he mailed the letter, he was moved to another prison.
Despite these factors of his using an erroneous address and his prison transfer,
he speculates that the delay in receiving his returned mail was caused by the
defendants conspiring to retaliate against him for exercising his constitutional
rights. Tawe concedes on appeal, however, that he has no idea whether the
named defendants were involved in the alleged constitutional violations and
that he only named those defendants in this lawsuit so that the district court
would investigate and he might possibly find out that the judge who heard his
cases in the Northern District of Texas got his letter to Warren and then
“rejected” it. Tawe’s “conclusory allegations or legal conclusions masquerading
as factual conclusions will not suffice to prevent a motion to dismiss.” Taylor
v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002). The district court’s
judgment is therefore affirmed.
      The district court’s dismissal of Tawe’s complaint for failure to state a
claim on which relief could be granted counts as a strike for purposes of
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 385 (5th Cir. 1996). The
Northern District Court of Texas’s dismissal as frivolous of Tawe v. Unknown
Psychiatrist, No. 3:11-cv-1016 (N.D. Tex. 2011), also counts as a strike. Tawe
is WARNED that if he accrues three strikes under § 1915(g), he will be barred
from proceeding 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 § 1915(g).
      AFFIRMED; SANCTION WARNING ISSUED.




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