Rowsey v. Epps , 180 F. App'x 536 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 17, 2006
Charles R. Fulbruge III
Clerk
No. 05-60684
Summary Calendar
JAMES R. ROWSEY,
Plaintiff-Appellant,
versus
CHRISTOPHER B. EPPS, COMMISSIONER, MISSISSIPPI DEPARTMENT OF
CORRECTIONS; MICHAEL WILSON, Superintendent; RONALD KING,
Superintendent, Southern Mississippi Correctional Institute,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 4:04-CV-375
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Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
James R. Rowsey, Mississippi inmate # 34459, appeals the
dismissal with prejudice of his in forma pauperis (IFP) 42 U.S.C.
§ 1983 complaint for failure to state a claim upon which relief
can be granted under 28 U.S.C. §§ 1915(e) and 1915(g). His
complaint alleged that he was transferred out of the Mississippi
State Penitentiary at Parchman, Mississippi, in January 2004, to
the correctional institute in Leakesville, Mississippi, but that
*
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this opinion should not be published and is not precedent except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. 05-60684
-2-
he saw a statement in his file that suggested that he was to be
transferred to the Governor’s mansion where he thinks that he
would have received a pardon or a commutation of his sentence.
Rowsey argues that he was aggrieved by being moved from Parchman
because at the time he was moved Governor Musgrove, who had been
voted out of office, was issuing pardons. He also asserts that
he had been denied his right to review his file in violation of
standard operating procedures and for first time he asserts that
he now “feels that he may have had” a pardon or commutation of
sentence from Governor Musgrove but never received it because of
“technical” difficulties like the change in his address resulting
from his transfer from Parchman.
Rowsey did not have a liberty interest in his housing
assignment, and thus he cannot assert a constitutional
deprivation in connection with his transfer to Leakesville or his
failure to be transferred to the Governor’s mansion. See Meachum
v. Fano, 427 U.S. 215, 225 (1976). Rowsey’s allegation that he
might have received pardon or commutation and that it has been
“lost,” is likewise insufficient to state a § 1983 claim because
it is too speculative. Cf. Young v. Biggers, 938 F.2d 565, 569
(5th Cir. 1991). Moreover, we will not review his claim that he
“feels” he “might” have had a pardon but had not been released
because of some technicality which he raise for the first time in
his brief. See Kinash v. Callahan, 129 F.3d 736, 739 n.10 (5th
Cir. 1997).
No. 05-60684
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Rowsey also asserts that the district court erred in first
ordering an evidentiary hearing but then not holding it. Rowsey
makes no attempt to explain how further factual development would
be useful in this matter and has failed to show that the district
court erred in not affording a hearing. See Eason v. Thaler, 14
F.3d 8, 10 (5th Cir. 1994).
Rowsey also contends that the district court reversibly
erred by not serving the defendants. The district court did not
err in not serving the defendants. See 28 U.S.C. 1915A(a) and
(b).
Rowsey’s appeal is without arguable merit and is frivolous.
See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). It is
therefore DISMISSED. See 5TH CIR. R. 42.2. Rowsey is CAUTIONED
that the dismissal of this appeal as frivolous counts as a strike
under 28 U.S.C. § 1915(g), as does the district court’s dismissal
of his complaint. See Adepegba v. Hammons, 103 F.3d 383, 387-88
(5th Cir. 1996). Rowsey is CAUTIONED that if he accumulates
three strikes under 28 U.S.C. § 1915(g), he will not be able to
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). Rowsey’s motion for production of documents and
appointment of counsel are DENIED.