Jones v. Smith , 234 F. App'x 249 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
July 9, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-60577
Summary Calendar
DONALD JONES,
Plaintiff-Appellant,
versus
HELEN SMITH; RONALD KING; CHRISTOPHER B. EPPS; JAMES EASTERLING,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 2:05-CV-2160
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Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Donald Jones, Mississippi state prisoner # K3202, appeals
the district court’s dismissal of his pro se civil rights
action against four Mississippi Department of Corrections
officials for failure to state a claim, pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii). A dismissal under this subsection is
reviewed de novo. See Ruiz v. United States, 160 F.3d 273, 275
(5th Cir. 1998).
*
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this opinion should not be published and is not precedent except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. 06-60577
-2-
Jones contends that the district court erred by dismissing
his claim based on the loss of his prison job. The district
court correctly held that this claim lacks merit because a
prisoner does not have a constitutionally protected liberty
interest in his prison work assignment. See Jackson v. Cain,
864 F.2d 1235, 1250 (5th Cir. 1989).
Jones contends that the district court erred in dismissing
his complaint before summonses were served on the defendants.
However, 28 U.S.C. § 1915(e)(2) instructs the district court to
dismiss a complaint “at any time” that dismissal appears
warranted. Thus there is no requirement for service on the
defendants. Id.; see also Carr v. Dvorin, 171 F.3d 115, 116
(2d Cir. 1999) (noting that 28 U.S.C. § 1915A, like § 1915(e)(2),
“clearly does not require that process be served or that
plaintiff be provided an opportunity to respond before
dismissal”). Accordingly, service was not required before
dismissing the action for failure to state a claim.
The district court's dismissal of the action for failure to
state a claim under § 1915(e)(2)(B)(ii) counts as a strike under
28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387
(5th Cir. 1996). Jones is cautioned that if he accumulates three
strikes under § 1915(g), he will not be able to proceed in forma
pauperis 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.
AFFIRMED; SANCTION WARNING ISSUED.