Muscolino v. Landrum , 310 F. App'x 676 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 18, 2009
No. 07-60558
Summary Calendar Charles R. Fulbruge III
Clerk
MICHELANGELO MUSCOLINO
Plaintiff-Appellant
v.
MICHAEL LANDRUM, Internal Affairs Investigator, in his individual and
official capacity; SHERRY MAGGITT, Disciplinary Committee, in her individual
and official capacity; ANNE PERKINS, Disciplinary Committee Chairperson, in
her individual and official capacity; K ROBERTS, ARP Adjudicator, in his
individual and official capacity; RAYMOND BYRD, Warden, Second Step
Respondent, in his individual and official capacity; CHRISTOPHER EPPS,
Mississippi Department of Corrections Commissioner, Third Step Respondent,
in his individual and official capacity
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 4:07-CV-40
Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Michelangelo Muscolino, Mississippi prisoner # K2799,
moves this court for leave to proceed in forma pauperis (IFP) on appeal from the
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 07-60558
dismissal of his 42 U.S.C. § 1983 suit which alleged that his constitutional rights
were violated in connection with a disciplinary case. The district court denied
Muscolino’s request to proceed IFP on appeal, certifying that this appeal was not
taken in good faith. Muscolino’s IFP motion is a challenge to that certification.
See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1992).
As Muscolino raises a claim of conspiracy for the first time on appeal, we
shall not consider it. See Leverette v. Louisville Ladder Co., 183 F.3d 339, 342
(5th Cir. 1999). Muscolino’s claim that the defendants failed to follow prison
procedures and regulations is insufficient, without more, to establish a
constitutional violation cognizable under § 1983. See Edwards v. Johnson, 209
F.3d 772, 779 (5th Cir. 2000). His claim that he was retaliated against for his
refusal to cooperate in the investigation of another inmate is frivolous because
the Fifth Amendment’s protection against self- incrimination is purely personal
and may not be asserted on behalf of a third party. See, e.g., California Bankers
Ass’n v. Schultz, 416 U.S. 21, 55 (1974). His claim that his reclassification to
maximum security and his loss of privileges violated his due process rights does
not state a violation of a cognizable liberty interest. See Hernandez v. Velasquez,
522 F.3d 556, 562-64 (5th Cir. 2008); Madison v. Parker, 104 F.3d 765, 767-68
(5th Cir. 1997); Moody v. Baker, 857 F.2d 256, 257-58 (5th Cir. 1988).
Muscolino has not shown that he will present any nonfrivolous issue on
appeal. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). His motion for
leave to proceed IFP is denied, and this appeal is dismissed as frivolous. See
Baugh, 117 F.3d at 202 n.24; 5th Cir. R. 42.2. Our dismissal of Muscolino’s
appeal as frivolous and the district court’s dismissal of his civil rights suit for
failure to state a claim count as two strikes for purposes of 28 U.S.C. § 1915(g).
See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996). Muscolino is
warned that if, pursuant to § 1915(g), he accumulates a third strike, he shall be
barred from proceeding IFP while he is incarcerated or detained in any facility
unless he is under imminent danger of serious physical injury. See § 1915(g).
MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.
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