Freeman v. Johnson

79 F. App'x 3

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 20, 2003
• Docket: 03-20081
• Status: Unpublished

Opinion

PER CURIAM: *

Perry Wayne Freeman, Texas prisoner #752397, appeals the district court’s dismissal of his 42 U.S.C. § 1983 complaint as frivolous and for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B). He reasserts his argument that prison officials denied him access to the courts in violation of his constitutional rights by not providing him with certain statutory authority.

Freeman fails to demonstrate a “relevant actual injury” stemming from the defendants’ alleged unconstitutional conduct. Lewis v. Casey, 518 U.S. 343, 351, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). The federal statutes Freeman requested, 28 U.S.C. §§ 1495 ** and 2513, are simply not relevant to the appeal of his state conviction and come into play only after a defendant has succeeded in overturning his federal conviction and is seeking damages for wrongful conviction. See 28 U.S.C. §§ 1495 and 2513. Therefore, the district court did not err in dismissing Freeman’s action.

Freeman’s argument that he needed the requested statutory authority in order to do preliminary research for his federal habeas petition is raised for the first time on appeal, and this court will not review it. See Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir.1999). Furthermore, the statutes would likewise not be relevant to a federal habeas action, as they are relevant only after a defendant’s federal conviction has been overturned. See 28 U.S.C. §§ 1495, 2513.

The district court’s dismissal of the complaint as frivolous and for failure to state a claim counts as a “strike” for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th Cir. 1996). Freeman is WARNED that if he accumulates three strikes pursuant to 28 U.S.C. § 1915(g), 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. Id.

Freeman’s motion for appointment of appellate counsel is DENIED.

AFFIRMED; SANCTION WARNING ISSUED; MOTION DENIED.

* Pursuant to 5m Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

** Although Freeman has identified 28 U.S.C. § 1491, which relates to contract actions against the United States, as one of the statutes he requested, it is presumed that he meant to refer to 28 U.S.C. § 1495.