Smith v. Skinner ( 1997 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-40553
(Summary Calendar)
DANNY RENE SMITH,
Plaintiff-Appellant,
versus
BILL SKINNER, SHERIFF OF WOOD COUNTY,
WILLIAM “BILL” COHEN, JAIL ADMINISTRATOR,
JAMES ROBERTS, DEPUTY, NOEL MARTIN, DEPUTY,
JAMES TURNER, DEPUTY, CHUCK HOUGHTON,
DEPUTY AND JAILER,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
(USDC No. 6:96-CV-463)
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December 17, 1997
Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Danny Rene Smith, Texas prisoner number 708840, appeals the
dismissal of his § 1983 action as frivolous pursuant to 28 U.S.C.
§ 1915. Smith alleged confiscation of personal property, that the
prison food was inadequate, and that he was kept in “isolation-
segregation” in violation of his due process rights as a pretrial
detainee. He also requests appointment of appellate counsel. 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that this opinion should not be published and is not precedent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.
request for appointment of appellate counsel is DENIED.
Smith’s motion for a “special monitor” is frivolous. It is
therefore DENIED.
A pretrial detainee’s claims that conditions of confinement
are unconstitutional is reviewed under the Due Process Clause of
the Fourteenth Amendment. See Bell v. Wolfish, 441 U.S. 520, 535-
37 (1979); Hare v. City of Corinth, Miss., 74 F.3d 633, 639 (5th
Cir. 1996)(en banc). Smith had no due process right to be assigned
to the general prison population. Mitchell v. Sheriff Dept.,
Lubbock County, Tex., 995 F.2d 60, 62-63 (5th Cir. 1993).
Smith’s claim regarding the prison food is equally meritless.
He has not shown that the food was not reasonably adequate and
consisting of sufficient nutritional value, or that he was not
regularly fed. Green v. Ferrell, 801 F.2d 765, 770-71 and n.5 (5th
Cir. 1986).
Smith’s confiscation-of-property claim was adjudicated in his
prior § 1983 action; he does not argue that res judicata does not
apply, and he has not alleged that another confiscation occurred
subsequent to that adjudication.
Smith’s appeal is without arguable merit, and it is thus
frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983). It is therefore DISMISSED. 5th Cir. R. 42.2.
The district court’s dismissal of Smith’s complaint and this
court’s dismissal of the appeal count as two “strikes” under the
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Prison Litigation Reform Act, 28 U.S.C. § 1915(g).
APPEAL DISMISSED; MOTIONS DENIED.
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