Kenneth Menard v. Timothy Evans

Fifth Circuit

Kenneth Menard v. Timothy Evans

433 F. App'x 236

CourtCourt of Appeals for the Fifth Circuit

DecidedJuly 15, 2011

Docket11-40166

StatusUnpublished

This text of 433 F. App'x 236 (Kenneth Menard v. Timothy Evans) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Kenneth Menard v. Timothy Evans, 433 F. App'x 236 (5th Cir. 2011).

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PER CURIAM: *

Kenneth Menard, Texas prisoner # 724683, seeks to appeal the dismissal of his 42 U.S.C. § 1983 complaint, in which he alleged that he was subjected to a visual body cavity search in the presence of female prison employees in violation of the Fourth Amendment. The district court dismissed the complaint both as frivolous and for failure to state a claim, pursuant to 28 U.S.C. § 1915A(b)(l). Accordingly, our review is de novo. See Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir.2005).

The invasion of privacy that Menard alleged was no greater than this court has previously held to be constitutional. See *237 Letcher v. Turner, 968 F.2d 508, 510 (5th Cir.1992); Elliott v. Lynn, 38 F.3d 188, 190-92 (5th Cir.1994); Oliver v. Scott, 276 F.3d 736, 747 (5th Cir.2002). Menard’s appeal is without arguable merit, and we dismiss it as frivolous. See 5th Cir. R. 42.2.

The dismissal of the complaint by the district court as frivolous and for failure to state a claim and the dismissal of the appeal as frivolous count as strikes pursuant to 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th Cir.1996). Menard garnered a strike in Menard v. Wagner, No. 3:09-CV-8 (S.D.Tex. Mar. 2, 2011). Accordingly, he has three strikes and is now barred under § 1915(g) from proceeding 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 § 1915(g).

Menard has also filed a motion for appointment of counsel. Because this matter is not particularly complex, and Menard has shown an ability to prepare a cogent brief and cite relevant facts and law, the motion is DENIED. See Schwander v. Blackburn, 750 F.2d 494, 502 (5th Cir. 1985).

*

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.

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PER CURIAM: *

Kenneth Menard, Texas prisoner # 724683, seeks to appeal the dismissal of his 42 U.S.C. § 1983 complaint, in which he alleged that he was subjected to a visual body cavity search in the presence of female prison employees in violation of the Fourth Amendment. The district court dismissed the complaint both as frivolous and for failure to state a claim, pursuant to 28 U.S.C. § 1915A(b)(l). Accordingly, our review is de novo. See Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir.2005).

The invasion of privacy that Menard alleged was no greater than this court has previously held to be constitutional. See *237 Letcher v. Turner, 968 F.2d 508, 510 (5th Cir.1992); Elliott v. Lynn, 38 F.3d 188, 190-92 (5th Cir.1994); Oliver v. Scott, 276 F.3d 736, 747 (5th Cir.2002). Menard’s appeal is without arguable merit, and we dismiss it as frivolous. See 5th Cir. R. 42.2.

The dismissal of the complaint by the district court as frivolous and for failure to state a claim and the dismissal of the appeal as frivolous count as strikes pursuant to 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th Cir.1996). Menard garnered a strike in Menard v. Wagner, No. 3:09-CV-8 (S.D.Tex. Mar. 2, 2011). Accordingly, he has three strikes and is now barred under § 1915(g) from proceeding 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 § 1915(g).

Menard has also filed a motion for appointment of counsel. Because this matter is not particularly complex, and Menard has shown an ability to prepare a cogent brief and cite relevant facts and law, the motion is DENIED. See Schwander v. Blackburn, 750 F.2d 494, 502 (5th Cir. 1985).

*

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.

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