Smith v. Jackson

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 10, 2000
• Docket: 00-60128
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-60128 Summary Calendar

CALVIN MORRIS SMITH,

Plaintiff-Appellant,

versus

EARL JACKSON, Case Manager, Supervisor; STATE OF MISSISSIPPI DEPARTMENT OF CORRECTIONS; AREA (I) UNIT 29 ADMINISTRATION, PARCHMAN,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Northern District of Mississippi USDC No. 4:99-CV-143-B-D -------------------- October 6, 2000

Before EMILIO M. GARZA, STEWART and PARKER, Circuit Judges.

PER CURIAM:*

Calvin Morris Smith, Mississippi prisoner # 48826, appeals

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

rights action as frivolous pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(i). Smith argues that his due process rights

were violated because Jackson refused to increase his custody

status. Because inmates have no protectable property interest in

custodial classification, the district court did not abuse its

discretion in dismissing Smith’s due process claim as frivolous

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-60128 -2-

pursuant to § 1915(e)(2)(B)(i). See Whitley v. Hunt, 158 F.3d

882, 889 (5th Cir. 1998).

Smith argues that Jackson’s denial of his custody status

increase violated his equal protection rights because some

prisoners who were free of disciplinary violations for six months

received custody status increases while he did not. Smith’s

claim is without merit as Smith’s classification does not involve

a suspect class or impinge upon a fundamental right. Further,

the denial of a custody status increase had a rational basis

because Smith had committed a disciplinary violation within the

preceding year. See Rolf v. City of San Antonio, 77 F.3d 823,

827 (5th Cir. 1996).

Smith argues that his double jeopardy rights were violated

because he received two punishments for a disciplinary violation.

The Double Jeopardy Clause does not apply to prison disciplinary

proceedings. See Wolff v. McDonnell, 418 U.S. 539, 556 (1974);

Showery v. Samaniego, 814 F.2d 200, 202 (5th Cir. 1987).

For the first time on appeal, Smith argues that: (1) his due

process rights were violated because the Classification Committee

denied his right to a classification hearing before he was

released from administrative segregation; (2) the Classification

Committee should have assigned him to a job which was consistent

with his medical restrictions; and (3) he has a protected liberty

interest under Miss Const. Art. 3 § 14, and Miss. Code Ann.

§§ 47-5-99 to 47-5-103. Because these claims were not presented

to the district court, this court will not address them. See

Shanks v. AlliedSignal, Inc., 169 F.3d 988, 993 n.6 (5th Cir. No. 00-60128 -3-

1999); Burch v. Coca-Cola, 119 F.3d 305, 319 (5th Cir. 1997)

(“This Court will not consider on appeal a claim not submitted to

the district court.”).

The district court’s dismissal of Smith’s § 1983 action as

frivolous and the dismissal of this appeal as frivolous count as

two separate strikes for purposes of 28 U.S.C. § 1915(g). See

Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996). Smith is

cautioned that once he accumulates 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 § 1915(g).

This appeal is without arguable merit and therefore,

frivolous. Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).

Because the appeal is frivolous, it is DISMISSED. 5th Cir.

R. 42.2. Smith’s motion to relocate to the Delta Correctional

Facility in Greenwood, Mississippi, is DENIED.

APPEAL DISMISSED; MOTION TO RELOCATE PRISONER DENIED; ISSUE

SANCTION WARNING.