Deem v. Devasto , 140 F. App'x 574 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 16, 2005
Charles R. Fulbruge III
Clerk
No. 04-41096
Conference Calendar
STEVEN LYNN DEEM,
Plaintiff-Appellant,
versus
DIANE DEVASTO; JILL E. MCFADDEN,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:03-CV-579-LED-JKG
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Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Steven Lynn Deem, Texas prisoner #835277, appeals the
district court’s dismissal of his 42 U.S.C. § 1983 suit pursuant
to 28 U.S.C. § 1915A(b)(1) as frivolous and for failure to state
a claim. His civil rights suit alleged that a state court judge
and a state clerk of court unconstitutionally denied him a free
copy of his trial record.
Deem stated that he wanted a free copy of his trial record
in connection with a habeas proceeding; however, there is no
*
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this opinion should not be published and is not precedent except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. 04-41096
-2-
constitutional mandate that a habeas petitioner must be provided
a free copy of his state-court criminal trial record. See Smith
v. Beto, 472 F.2d 164, 165 (5th Cir. 1973). Moreover, the denial
of a free copy of Deem’s trial record in connection with his
habeas proceeding did not violate his equal protection rights.
See United States v. MacCollum, 426 U.S. 317, 324-25 (1976).
As Deem’s appeal is without arguable merit, it is DISMISSED
as FRIVOLOUS. See 5TH CIR. R. 42.2; Howard v. King, 707 F.2d 215,
219-20 (5th Cir. 1983). The dismissal of this appeal as
frivolous and the district court’s dismissal of his 42 U.S.C.
§ 1983 suit pursuant to 28 U.S.C. § 1915A(b)(1) count as two
strikes for purposes of 28 U.S.C. § 1915(g). See Adepegba v.
Hammons, 103 F.3d 383, 388 (5th Cir. 1996). Deem accrued another
strike when we dismissed for want of prosecution his appeal from
the dismissal, under 28 U.S.C. § 1915(e)(2)(B)(ii), of his civil
rights action in Deem v. Rodriguez, No. 4:04-CV-2617 (S.D. Tex.
Aug. 6, 2004). See Deem v. Rodriguez, No. 04-20688 (5th Cir.
Dec. 2, 2004). Accordingly, Deem is BARRED from proceeding in
forma pauperis in any civil action or appeal 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; § 1915(g) BAR IMPOSED.