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Cardona v. Menifee ( 2007 )


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  •           IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 11, 2007
No. 07-30483
Conference Calendar              Charles R. Fulbruge III
Clerk
JOSE CRISTOBAL CARDONA
Plaintiff-Appellant
v.
F MENIFEE; K MONTGOMERY
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:06-CV-1705
Before REAVLEY, BARKSDALE, and GARZA, Circuit Judges.
PER CURIAM:*
Jose Cristobal Cardona, federal prisoner # 40869-080, appeals from the
dismissal of his Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics,
    403 U.S. 388
     (1971), action as frivolous and for failure to state a claim.
Cardona contends that he had a First Amendment right to correspond with a
prisoner in another institution whom he purported to represent as a next friend
in that other prisoner’s
    28 U.S.C. § 2255
     action. Cardona did not establish his
*
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should not be published and is not precedent except under the limited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. 07-30483
status as a next friend in the other prisoner’s proceeding, see Whitmore v.
Arkansas,
    495 U.S. 149
    , 164 (1990); Magallon v. Livingston,
    453 F.3d 268
    , 271
(5th Cir.), cert. denied,
    126 S. Ct. 2974
     (2006); his First Amendment claim rests
on a flawed factual premise.        Moreover, Cardona has no general First
Amendment right to communication with prisoners in other prison units. See
Turner v. Safely,
    482 U.S. 78
    , 91 (1987).
Cardona’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.
The district court’s dismissal of Cardona’s action and this court’s dismissal
of his appeal count as two strikes under
    28 U.S.C. § 1915
    (g). See Adepegba v.
Hammons,
    103 F.3d 383
    , 387-88 (5th Cir. 1996). The district court’s dismissal
and this court’s dismissal of the appeal in Cardona v. Tuite, No. 07-30041 (5th
Cir. Dec. 10, 2007) (unpublished), also count as two strikes under § 1915(g). Id.
As Cardona has now accumulated at least three strikes, he is barred from
proceeding in forma pauperis pursuant to § 1915 while he is incarcerated or
detained in any facility unless he is under imminent danger of serious physical
injury. See § 1915(g).
APPEAL DISMISSED;
    28 U.S.C. § 1915
    (g) BAR IMPOSED.
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