Toppins v. Newsom

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 96-30031 Summary Calendar

HORACE TOPPINS, JR.,

Plaintiff-Appellant,

versus

ROBERT A. NEWSOM, Captain; JOHN P. WHITLEY, Warden; RICHARD L. STALDER, Secretary of Department of Corrections; DORA RABALAIS, Legal Programs Director; M. L. MCCOY, Classification officer; GARY FRANKS, Assistant Warden,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Middle District of Louisiana USDC No. 94-CV-872-B-M1 - - - - - - - - - - September 11, 1996 Before HIGGINBOTHAM, WIENER and BENAVIDES, Circuit Judges.

PER CURIAM:*

A movant for in forma pauperis (IFP) status on appeal must

show that he is a pauper and that he will present a nonfrivolous

issue on appeal. Carson v. Polley, 689 F.2d 562, 586 (5th Cir.

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. No. 96-30031 - 2 -

1982). In the absence of a nonfrivolous issue, the appeal will

be dismissed. 5th Cir. 42.2.

Horace Toppins, Jr., No. 119405, a Louisiana state prisoner,

contends that the district court erred by not allowing him to

amend his 42 U.S.C. § 1983 complaint to add his claim of

retaliation for filing suit against the defendants. Because

Toppins’ allegations do not rise to the level of a cognizable

claim, see Whittington v. Lynaugh, 842 F.2d 818, 819 (5th Cir.),

cert. denied, 488 U.S. 840 (1988), the district court did not err

by not allowing Toppins to amend his complaint. See Chemetron

Corp. v. Business Funds, Inc., 682 F.2d 1149, 1193-94 (5th Cir.

1982), vacated on other grounds, 460 U.S. 1007 (1983) (futility

of amendment one reason to deny leave to amend).

Toppins also contends that the district court erred by

granting summary judgment for the defendants regarding his claims

of violations of his rights to due process and to be free of

cruel and unusual punishment. Because Toppins’ allegations do

not rise to the level of a constitutional violation, see Sandin

v. Conner, 115 S. Ct. 2293, 2295 (1995) (due process); see

Jackson v. Culbertson, 984 F.2d 699, 700 (5th Cir. 1993) (cruel

and unusual punishment), the district court did not err in

granting summary judgment for the defendants. See Celotex Corp.

v. Catrett, 477 U.S. 317, 322 (1986).

Toppins does not present a nonfrivolous issue for appeal.

See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). His No. 96-30031 - 3 -

motion for IFP is DENIED and the APPEAL DISMISSED as frivolous.

See 5th Cir. R. 42.2.