Barnett v. Captl Corr Resrc Inc ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50934
Summary Calendar
CALVIN EUGENE BARNETT,
Plaintiff-Appellant,
versus
CAPITAL CORRECTIONAL RESOURCES INCORPORATED (CCRI);
JIM BREWER; LARRY FIELDS; VINCENT KNIGHT; TOM BRENNAN;
DOYLE COSLIN; CARL WHITE; JIM H. GANT; C. JONES; T.R. DECARDOVA;
R. O’PRY; BILLY KENT; R. WALKER; J. LEDET; WANDA WILLIAMS;
DANNY HARDING,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. W-00-CV-69
--------------------
June 19, 2002
Before JOLLY, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Calvin Eugene Barnett, Oklahoma prisoner # 89599, appeals
the district court’s dismissal of his 42 U.S.C. § 1983 civil
rights action. Barnett’s motion for default judgment is DENIED.
Barnett argues that he has a right to have the Tenth Circuit
Court of Appeals review the Oklahoma judge’s decision to transfer
*
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that this opinion should not be published and is not precedent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. 01-50934
-2-
the case to the Western District of Texas. He contends that the
transfer order was final and reviewable by the Tenth Circuit at
the time it was issued. The Oklahoma district court’s order
transferring this case to Texas as the correct venue pursuant to
28 U.S.C. § 1406(a) was not a final appealable order which
Barnett could appeal to the Tenth Circuit. FDIC v. McGlamery, 74
F.3d 218, 221-22 (10th Cir. 1996); Brinar v. Williamson, 245 F.3d
515, 517-18 (5th Cir. 2001). The transfer order was subject to
indirect review in the Texas district court and in this court
upon Barnett’s motion for retransfer of the case back to
Oklahoma. McGlamery, 74 F.3d at 221. Barnett does not argue the
merits of his motion to retransfer in this appeal.
Barnett argues that he was denied due process at his
disciplinary hearing for a March 19, 1997, infraction because
Billy Kent, the correctional officer who allegedly beat him up on
February 28, 1997, sat as chairman of his disciplinary board for
the disciplinary infraction he received on March 19 for not
obeying an order. Barnett acknowledged in his complaint and his
disciplinary records show that the punishment he received for the
disciplinary infraction of March 19, 1997, was 15 days’
administrative segregation and 15 days’ suspension of privileges.
Barnett’s punishments were not sufficiently severe to entitle him
to due process protections in connection with the disciplinary
proceedings in question. Sandin v. Conner, 515 U.S. 472, 484
(1995).
No. 01-50934
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Barnett argues that the defendants were not entitled to
qualified immunity because they were state actors, and that the
private prison employees were state actors, giving rise to
diversity jurisdiction. The district court did not decide that
any of the defendants was entitled to qualified immunity, or that
it did not have jurisdiction over any of the Texas defendants.
These arguments do not relate to what the district court actually
decided in its opinion. Barnett lists a series of decisions on
various motions by the district court judge and magistrate judge
in Oklahoma and the magistrate judge in Texas. He provides no
record cites, argument, or reasons for why he contends that the
judges abused their discretion in denying relief on the various
motions in question. Barnett’s brief contains no record
citations, no citation to relevant legal authority, and no
identification of any error in the various rulings of which he
complains. He has not adequately briefed any arguments relating
to the list of challenged rulings. Grant v. Cuellar, 59 F.3d
523, 524 (5th Cir. 1995); Brinkmann v. Dallas County Deputy
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987); FED. R. APP.
P. 28(a)(9)(A); 5TH CIR. R. 28.2.3.
Barnett’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 5TH CIR.
R. 42.2. Barnett is hereby informed that the dismissal of this
appeal as frivolous counts as a strike for purposes of 28 U.S.C.
No. 01-50934
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§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir.
1996). We caution Barnett that once he accumulates three
strikes, he may not proceed IFP 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 28
U.S.C. § 1915(g).
APPEAL DISMISSED AS FRIVOLOUS; MOTION DENIED.