Pickens v. Minton , 109 F. App'x 655 ( 2004 )


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  •                                                         United States Court of Appeals
    Fifth Circuit
    FILED
    IN THE UNITED STATES COURT OF APPEALS      August 18, 2004
    FOR THE FIFTH CIRCUIT
    Charles R. Fulbruge III
    Clerk
    No. 03-61017
    Conference Calendar
    ROCKIE D. PICKENS,
    Plaintiff-Appellant,
    versus
    TRACY MINTON, Correctional Officer I, in her individual
    capacity; ETHEL CARLIZE, Disciplinary Chairperson, in
    her individual capacity; K. GREEN, Correctional Officer IV,
    Defendants-Appellees.
    --------------------
    Appeal from the United States District Court
    for the Northern District of Mississippi
    USDC No. 4:03-CV-228-P-A
    --------------------
    Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges.
    PER CURIAM:*
    Rockie D. Pickens, Mississippi state prisoner # 71454,
    proceeding pro se, has filed an application for leave to proceed
    in forma pauperis (IFP) to appeal the denial of his 
    42 U.S.C. § 1983
     complaint, in which he alleged that he is entitled to
    damages because he was denied due process during an
    administrative grievance proceeding.   By moving for IFP, Pickens
    is challenging the district court’s certification that IFP status
    *
    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    this opinion should not be published and is not precedent except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. 03-61017
    -2-
    should not be granted on appeal because his appeal is not taken
    in good faith.    See Baugh v. Taylor, 
    117 F.3d 197
    , 202 (5th Cir.
    1997).
    The district court failed to comply with Baugh since it
    neither provided reasons for certifying that Pickens’s appeal was
    not taken in good faith, nor incorporated its decision on the
    merits of Pickens’s complaint.    See Baugh, 
    117 F.3d at 202
    ; FED.
    R. APP. P. 24(a)(3).   Nevertheless, we may dismiss the case sua
    sponte pursuant to 5TH CIR. R. 42.2 if it is apparent that the
    appeal lacks merit.    See Baugh, 
    117 F.3d at
    202 & n.24.
    Pickens’s assertion of a due process violation is without
    merit.   His placement in isolation for 20 days did not deprive
    him of any liberty interest protected by due process because the
    punishment imposed did not constitute an “atypical and
    significant hardship on [him] in relation to the ordinary
    incidents of prison life.”    Sandin v. Conner, 
    515 U.S. 472
    , 484,
    486 (1995).   Similarly, Pickens has no due process claim arising
    out of his reduced custody classification because a prison inmate
    does not have a protectable liberty interest in his custodial
    classification.    See Neals v. Norwood, 
    59 F.3d 530
    , 533 (5th Cir.
    1995).
    Pickens’s appeal is without arguable merit and is frivolous.
    See Howard v. King, 
    707 F.2d 215
    , 220 (5th Cir. 1983).
    Accordingly, we uphold the district court’s order certifying that
    the appeal is not taken in good faith and denying Pickens IFP
    No. 03-61017
    -3-
    status on appeal, we deny the motion for leave to proceed IFP,
    and we dismiss Pickens’s appeal as frivolous.     See Baugh, 
    117 F.3d at
    202 n.24; 5TH CIR. R. 42.2.    Pickens’s motion for the
    appointment of appellate counsel is denied as moot.
    The district court’s dismissal of Pickens’s action and our
    dismissal of his appeal as frivolous count as two 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 Pickens that should
    he accumulate three strikes, he will be unable 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).
    IFP DENIED; APPEAL DISMISSED; SANCTIONS WARNING ISSUED.
    

Document Info

Docket Number: 03-61017

Citation Numbers: 109 F. App'x 655

Judges: Davis, Higginbotham, Per Curiam, Pickering

Filed Date: 8/18/2004

Precedential Status: Non-Precedential

Modified Date: 8/2/2023