Shawn Odneal v. R Hinojosa , 357 F. App'x 598 ( 2009 )


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  •            IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    December 16, 2009
    No. 09-40528
    Summary Calendar                    Charles R. Fulbruge III
    Clerk
    SHAWN K. ODNEAL,
    Plaintiff-Appellant
    v.
    R. HINOJOSA, Correctional Officers; C. PUENTIS, Captain,
    Defendants-Appellees
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 2:09-CV-70
    Before JOLLY, BARKSDALE, and CLEMENT, Circuit Judges.
    PER CURIAM:*
    Proceeding pro se, Shawn K. Odneal, Texas prisoner # 917382, appeals the
    dismissal of his 
    42 U.S.C. § 1983
     complaint for failure to state a claim, pursuant
    to 
    28 U.S.C. § 1915
    (e)(2)(B)(ii) (failure to state a claim on which relief may be
    granted) and § 1915A(b)(1) (frivolous, malicious, or failure to state a claim upon
    which relief may be granted). In that regard, Odneal’s punishments of 45 days
    *
    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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-40528
    of recreation restriction, 45 days of commissary restriction, and demotion in
    time-earning class were held not to implicate his due process rights, according
    to Sandin v. Conner, 
    515 U.S. 472
    , 486 (1995). Odneal maintains Sandin could
    not be relied upon because he was found guilty in a disciplinary hearing without
    any evidence of guilt and not given a written statement of the evidence.
    A § 1915(e)(2)(B)(ii) dismissal is reviewed de novo. E.g., Black v. Warren,
    
    134 F.3d 732
    , 733-34 (5th Cir. 1998); Geiger v. Jowers, 
    404 F.3d 371
    , 373 (5th
    Cir. 2005). In Sandin, the Court held: a prisoner’s protected liberty interests are
    “generally limited to freedom from restraint which, while not exceeding the
    sentence in such an unexpected manner as to give rise to protection by the Due
    Process Clause of its own force nonetheless imposes atypical and significant
    hardship on the inmate in relation to the ordinary incidents of prison life”.
    Sandin, 
    515 U.S. at 484
     (internal citations omitted).           Along that line,
    punishments such as loss of recreation and commissary privileges, cell
    restriction, and change in time-earning status do not implicate due process
    concerns. See Malchi v. Thaler, 
    211 F.3d 953
    , 958-59 (5th Cir. 2000); see also
    Madison v. Parker, 
    104 F.3d 765
    , 768 (5th Cir. 1997). Therefore, Odneal’s
    punishments “did not present the type of atypical, significant deprivation in
    which a State might conceivably create a liberty interest”. Sandin, 
    515 U.S. at 486
     (involving disciplinary segregation for 30 days as punishment for violating
    prison disciplinary rules).
    Odneal has not identified a constitutionally protected liberty interest. In
    short, his claims of due process violations at his hearing, even if true, failed to
    state a claim for relief under § 1983. Accordingly, he has not shown that the
    district court erred in dismissing his due process claims for failure to state a
    claim.
    Further, Odneal’s appeal is without arguable merit and is frivolous. See
    Howard v. King, 
    707 F.2d 215
    , 219-20 (5th Cir. 1983). Because the appeal is
    frivolous, it is dismissed. See 5 TH C IR. R. 42.2.
    2
    No. 09-40528
    The dismissal of this appeal as frivolous and the district court’s dismissal
    for failure to state a claim each count as a strike for purposes of 
    28 U.S.C. § 1915
    (g). See Adepegba v. Hammons, 
    103 F.3d 383
    , 387-88 (5th Cir. 1996).
    Odneal 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).
    APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING ISSUED.
    3
    

Document Info

Docket Number: 09-40528

Citation Numbers: 357 F. App'x 598

Judges: Barksdale, Clement, Jolly, Per Curiam

Filed Date: 12/16/2009

Precedential Status: Non-Precedential

Modified Date: 8/2/2023