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Sharp v. Anderson ( 2000 )


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  •                  IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-60676
Conference Calendar
HENDERSON SHARP,
Plaintiff-Appellant,
versus
JAMES V. ANDERSON, Superintendent,
Mississippi State Penitentiary;
EMMITT L. SPARKMAN, Warden of Facility,
Marshall County Correctional Facility;
DAVID HELMIC, Associate Warden,
Marshall County Correctional Facility;
TODD GUELKER; WILLIE MAE WILLIAM;
LIEUTENANT JASON GURLY; BRENDA CRANE;
CORRECTIONAL OFFICER 1 WILLIAMS;
CORRECTIONAL OFFICER 1 BUFORD;
CORRECTIONAL OFFICER 1 WHITE; GWEN SHAW;
JUSTIN HALL; JACK YOUMANS,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 3:98-CV-183-B
--------------------
June 15, 2000
Before JOLLY, DAVIS, and DUHÉ, Circuit Judges.
PER CURIAM:*
Henderson Sharp, Mississippi inmate #46812, appeals the
district court’s dismissal as frivolous of his 42 U.S.C. § 1983
complaint.     Sharp contends that the defendants subjected him to
*
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that this opinion should not be published and is not precedent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. 99-60676
-2-
cruel and unusual punishment by failing to inform him of four
telephone calls, which notified him of his sister’s death.    Sharp
contends also that he was charged with a disciplinary violation
in retaliation for filing a civil rights complaint and that he
was kept in administrative segregation for 112 days after he was
found not guilty of the disciplinary charge.    Sharp contends that
he was denied due process and that his custody classification was
changed without justification.
We review the district court’s dismissal as frivolous of a
prisoner’s in forma pauperis (IFP) complaint for abuse of
discretion.   Siglar v. Hightower,
    112 F.3d 191
    , 193 (5th Cir.
1997).   A complaint is frivolous “if it lacks an arguable basis
in law or fact.”
    Id. To obtain 
    relief under § 1983, the plaintiff must
demonstrate the violation of a constitutional right.     Allison v.
Kyle,
    66 F.3d 71
    , 73 (5th Cir. 1995).     Negligent conduct is not
actionable under § 1983; nor is failure to follow prison policy.
See Myers v. Klevenhagen,
    97 F.3d 91
    , 94 (5th Cir. 1996); Marsh
v. Jones,
    53 F.3d 707
    , 711-12 (5th Cir. 1995).    Sharp’s
allegations concerning the failure of the appellees to provide
notice of his sister’s death do not implicate the violation of a
constitutional right.
Sharp’s allegations do not establish a retaliatory motive.
See Woods v. Smith,
    60 F.3d 1161
    , 1166 (5th Cir. 1995) (inmate
must either produce direct evidence of retaliatory motive or
allege a chronology of events from which retaliation might
plausibly be inferred).   The record shows that Sharp was afforded
No. 99-60676
-3-
due process in the disciplinary proceedings.      See Wolff v.
McDonnell,
    418 U.S. 539
    , 564-65 (1974).      Sharp’s continued
confinement in administrative segregation does not implicate the
protections of the due process clause.       See Pichardo v. Kinker,
    73 F.3d 612
    , 613 (5th Cir. 1996); Luken v. Scott,
    71 F.3d 192
    ,
193 (5th Cir. 1995).    The change in Sharp’s custody
classification does not impinge on any cognizable liberty
interest.    See Moody v. Baker,
    857 F.2d 256
    , 257-58 (5th Cir.
1988) (“An inmate has neither a protectible property nor liberty
interest in his custody classification.”).      The district court
did not abuse its discretion by dismissing Sharp’s complaint as
frivolous.    See
    Siglar, 112 F.3d at 193
    .
Sharp’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 dismissal of Sharp’s appeal and the district court’s
dismissal of his complaint as frivolous count as strikes for
purposes of 28 U.S.C. § 1915(g).     See Adepegba v. Hammons,
    103 F.3d 383
    , 387-88 (5th Cir. 1996).    We caution Sharp 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 § 1915(g).
DISMISSED AS FRIVOLOUS; SANCTION WARNING ISSUED.