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holding that the videotape of the alleged excessive force incident submitted by defendants demonstrates that plaintiff's "claims have no basis in fact or law and are therefore frivolous"
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No. 07-10398 Summary Calendar.
April 14, 2008.
Patrick Nelson Barnes, Abilene, TX, pro se.
Brandy Bramlett, Office of the Attorney General Law Enforcement Defense Div., Austin, TX, for Defendants-Appellees.
Appeal from the United States District Court for the Northern District of Texas, USDC No. 1:05-CV-220.
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
Patrick Nelson Barnes, federal prisoner # 777299, appeals the dismissal of his 42 U.S.C. § 1983 action in which he alleged that the defendants used excessive force against him and displayed deliberate indifference to his serious medical needs. The district court granted the defendants' motions for summary judgment on grounds that Barnes offered only unsupported conclusions without presenting or adverting to any evidence that would have raised a genuine issue as to a material fact. See FED.R.CIV.P. 56.
In opposition to the defendants' motions, which were supported by competent summary judgment evidence including affidavits, medical records, and a videotape of the use of limited force, Barnes offered only a "mere scintilla" of competent evidence and general conclusions, allegations, and speculation, which are insufficient to defeat summary judgment. See Michaels v. Avitech, Inc., 202 F.3d 746, 754-55 (5th Cir. 2000); Alizadeh v. Safeway Stares, Inc., 802 F.2d 111, 113 (5th Cir. 1986). In this court, Barnes repeats the allegations of his complaint with some embellishment but without pointing to any evidence in the record to support his specific claims of force or injury. Moreover, the videotape evidence demonstrates that Barnes's claims have no basis in fact or law and are therefore frivolous. See Talib v. Gilley, 138 F.3d 211, 213 (5th Cir. 1998). Barnes's appeal is dismissed as frivolous. 5TH CIR. RULE 42.2. This dismissal counts as a strike for purposes of 28 U.S.C. § 1915(g). We warn Barnes that once he accumulates three strikes, he may not proceed in forma pauperis (IFP) in any civil action or appeal unless he "is under imminent danger of serious physical injury." § 1915(g).
APPEAL DISMISSED; SANCTION WARNING ISSUED.