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

                                                                     FILED
                                                                 December 11, 2007
                                  No. 07-30041
                               Conference Calendar              Charles R. Fulbruge III
                                                                        Clerk

JOSE CRISTOBAL CARDONA

                                             Plaintiff-Appellant

v.

R TUITE

                                             Defendant-Appellee


                 Appeal from the United States District Court
                    for the Western District of Louisiana
                           USDC No. 1:06-CV-1171


Before REAVLEY, BARKSDALE, and GARZA, Circuit Judges.
PER CURIAM:*
      Jose Cristobal Cardona, federal prisoner # 40869-080, appeals from the
dismissal of his Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971), action as frivolous and for failure to state a claim,
pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)&(ii). Cardona argues that the district
court erred by dismissing his action because he had a right to inform Officer R.
Tuite that Officer Tuite’s order that Cardona wear his cap with the bill facing



      *
      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should not be published and is not precedent except under the limited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. 07-30041

frontwards was illegal and because he did not disobey the order but rather
removed his cap altogether. Cardona argues that his disciplinary conviction for
failure to obey an order came about as retaliation because he told Officer Tuite
that he was unaware of any directive requiring him to wear his cap in a
particular manner. Cardona further contends that the district court erred by
dismissing his complaint without giving him an opportunity to amend it.
      Cardona could have utilized the internal grievance procedure to protest
Officer Tuite’s order. See 28 C.F.R. §§ 542.10-542.19. Cardona has not shown
that any “retaliation” was in response to his exercise of a First Amendment
right. See Freeman v. Tex. Dep't of Crim. Justice, 369 F.3d 854, 864 (5th Cir.
2004). Nor has he alleged a chronology of events from which this court plausibly
could infer a retaliatory motive. See Woods v. Smith, 60 F.3d 1161, 1164 (5th
Cir. 1995). Cardona does not state on appeal what additional facts he would
have included in an amended complaint. Therefore, he has not shown that the
district court abused its discretion in dismissing his complaint without giving
him an opportunity to amend. See Ashe v. Corley, 992 F.2d 540, 542 (5th Cir.
1993).
      Cardona’s appeal is without arguable merit and is frivolous. See Howard
v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Because the appeal is frivolous,
it is dismissed. See 5TH CIR. R. 42.2.
      The district court’s dismissal of Cardona’s action and this court’s dismissal
of his appeal count as two strikes under 28 U.S.C. § 1915(g). See Adepegba v.
Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). The district court’s dismissal
and this court’s dismissal of the appeal in Cardona v. Menifee, No. 07-30483 (5th
Cir. Dec. 10, 2007) (unpublished), also count as two strikes under § 1915(g). Id.
As Cardona has now accumulated at least three strikes, he is barred from
proceeding in forma pauperis pursuant to § 1915 while he is incarcerated or
detained in any facility unless he is under imminent danger of serious physical
injury. See § 1915(g).

                                         2
                      No. 07-30041

APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR IMPOSED.




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