# Lincoln v. Brown & Williams Co

> Court of Appeals for the Fifth Circuit · April 16, 1999 · 180 F.3d 261

URL: https://www.frixlaw.com/law-library/cases/17373

## Case

- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** April 16, 1999
- **Citations:** 180 F.3d 261
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 98-20640
Conference Calendar

LINZY LINCOLN,

Plaintiff-Appellant,

versus

BROWN & WILLIAMS TOBACCO COMPANY,
PHILIP MORRIS TOBACCO COMPANY,

Defendants-Appellees.

- - - - - - - - - -
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-98-CV-1811
- - - - - - - - - -

April 15, 1999

Before JONES, SMITH, and DUHÉ, Circuit Judges.

PER CURIAM:*

Linzy Lincoln, Texas prisoner # 265570, appeals the district

court’s dismissal of his 42 U.S.C. § 1983 complaint against two

tobacco companies for failure to state a claim. He argues that

the two tobacco companies acted under the color of state law

because there are Texas laws which regulate the tobacco

companies.

Lincoln’s complaint fails to allege the deprivation of a

statutory or constitutional right by a state actor or by a party

*
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that this opinion should not be published and is not precedent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. 98-20640
-2-

who conspired with a state actor. See Adickes v. S.H. Kress &

Co., 398 U.S. 144, 150-52 (1970). The district court’s dismissal

of the complaint for failure to state a claim was not error. See

Fed. R. Civ. P. 12(b)(6); Guthrie v. Tifco Industries, 941 F.2d

374, 379 (5th Cir. 1991).

Lincoln’s appeal lacks arguable merit and is thus frivolous.

See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).

Because the appeal is frivolous,, it is DISMISSED. 5TH CIR. R.

42.2. The dismissal of this appeal as frivolous counts as a

strike for purposes of 28 U.S.C. § 1915(g). We caution Lincoln

that once 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; SANCTIONS WARNING ISSUED.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/17373. Public record. Not legal advice.