Jones v. Smith

234 F. App'x 249

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 9, 2007
• Docket: 06-60577
• Status: Unpublished

Opinion

PER CURIAM: *

Donald Jones, Mississippi state prisoner #K3202, appeals the district court’s dismissal of his pro se civil rights action against four Mississippi Department of Corrections officials for failure to state a claim, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). A dismissal under this subsection is reviewed de novo. See Ruiz v. United States, 160 F.3d 273, 275 (5th Cir.1998).

Jones contends that the district court erred by dismissing his claim based on the loss of his prison job. The district court correctly held that this claim lacks merit because a prisoner does not have a constitutionally protected liberty interest in his prison work assignment. See Jackson v. Cain, 864 F.2d 1235, 1250 (5th Cir.1989).

Jones contends that the district court erred in dismissing his complaint before summonses were served on the defendants. However, 28 U.S.C. § 1915(e)(2) instructs the district court to dismiss a complaint “at any time” that dismissal appears warranted. Thus there is no requirement for service on the defendants. Id,.; see also Carr v. Dvorin, 171 F.3d 115, 116 (2d Cir.1999) (noting that 28 U.S.C. § 1915A, like § 1915(e)(2), “clearly does not require that process be served or that plaintiff be provided an opportunity to respond before dismissal”). Accordingly, service was not required before dismissing the action for failure to state a claim.

The district court’s dismissal of the action for failure to state a claim under § 1915(e)(2)(B)(ii) counts as a strike under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996). Jones is cautioned that if he accumulates three strikes under § 1915(g), he will not be able to proceed in forma pau-peris 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.

AFFIRMED; SANCTION WARNING ISSUED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.