Lewis v. Marshall Cty Corrtl

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 23, 2002
• Docket: 01-60581
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-60581 Conference Calendar

HENRY CLAY LEWIS,

Plaintiff-Appellant,

versus

MARSHALL COUNTY CORRECTIONAL FACILITY; EMMITT L. SPARKMAN, Warden; LATOYA JONES, Clerk of Inmate Accounts; JANET L. JOYNER, Clerk of Inmate Accounts; JOHN HOPKINS, Administrator, Administrative Remedy Program,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Northern District of Mississippi USDC No. 3:01-CV-7-B -------------------- August 21, 2002

Before HIGGINBOTHAM, DAVIS, and PARKER, Circuit Judges.

PER CURIAM:*

Henry Clay Lewis, a Mississippi prisoner (# 12339), appeals

the district court’s sua sponte dismissal of his 42 U.S.C. § 1983

civil rights action for failure to state a claim upon which

relief can be granted.

Lewis argues that the defendants violated his due process

and First Amendment rights by recouping from his inmate trust

account monies to pay for legal supplies and postage that earlier

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-60581 -2-

had been given to him for free, at times while he was indigent.

Because such practice does not pose an “atypical and significant

hardship on [Lewis] in relation to the ordinary incidents of

prison life,” see Sandin v. Conner, 515 U.S. 472, 483-84 (1995),

Lewis has not stated a cognizable due process claim. See

Guajardo v. Estelle, 580 F.2d 748, 762-63 (5th Cir. 1978).

He also has not stated a viable claim that the defendants’

actions violated his First Amendment right of access to the

courts, because he has not explained how the defendants’ actions

actually prejudiced him. See Lewis v. Casey, 518 U.S. 343, 350-

51 (1996). To the extent that Lewis is arguing that his money

was taken from him unconstitutionally, such a claim would be

frivolous because Mississippi provides an adequate post-

deprivation remedy. See Nickens v. Melton, 38 F.3d 183, 185 (5th

Cir. 1994).

Lewis’ appeal is without arguable merit and is thus

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

1983). Accordingly, Lewis’ appeal is DISMISSED. See 5TH CIR. R.

42.2. The dismissal of his current complaint for failure to

state a claim and this court’s dismissal of this appeal as

frivolous both count as “strikes” pursuant to 28 U.S.C.

§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir.

1996). This court has also affirmed the dismissal, as frivolous,

of a prior civil-rights complaint by Lewis, which counts as

another strike. See id.; Lewis v. Marshall County Corr.

Facility, No. 00-60045 (5th Cir. June 16, 2000) (unpublished),

cert. denied, 531 U.S. 963 (2000). Because Lewis has accumulated No. 01-60581 -3-

at least 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; THREE-STRIKES BAR IMPOSED.