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McKnight v. Eason, 06-10776 (2007)

Court: Court of Appeals for the Fifth Circuit Number: 06-10776 Visitors: 26
Filed: May 07, 2007
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT May 4, 2007 Charles R. Fulbruge III Clerk No. 06-10776 Summary Calendar CLIFTON MCKNIGHT, JR., Petitioner-Appellant, versus ROBERT EASON, Warden II; CARRY COOK, Assistant Warden; STACY L. JACKSON, Assistant Warden; BONNIE L. YOUNG, Investigator III, Respondents-Appellees. - Appeal from the United States District Court for the Northern District of Texas USDC No. 1:06-CV-54 - Before J
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                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   May 4, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 06-10776
                         Summary Calendar


CLIFTON MCKNIGHT, JR.,

                                    Petitioner-Appellant,

versus

ROBERT EASON, Warden II; CARRY COOK, Assistant Warden;
STACY L. JACKSON, Assistant Warden; BONNIE L. YOUNG,
Investigator III,

                                    Respondents-Appellees.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                       USDC No. 1:06-CV-54
                      --------------------

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Clifton McKnight, Jr., Texas prisoner # 759629, appeals the

district court’s dismissal with prejudice of his 42 U.S.C. § 1983

complaint pursuant to 28 U.S.C. § 1915.     His complaint raised

claims of racial discrimination, retaliation, and the violation

of his due process rights in connection with prison disciplinary

and grievance proceedings.

     McKnight complains of the racial imbalance between the white

prison employees and the black prisoners in the prison where he

     *
       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. 06-10776
                                 -2-

is incarcerated and the fact that the majority of the prisoners

in medium or close custody are black.      To state an equal

protection claim, McKnight must allege, inter alia, that

similarly situated individuals have been treated differently and

he must also allege purposeful or intentional discrimination.

See Muhammad v. Lynaugh, 
966 F.2d 901
, 903 (5th Cir. 1992).

McKnight did not offer the district court and he does not offer

this court anything other than conclusory allegations of racial

discrimination in the prison where he is incarcerated.         McKnight

has therefore failed to assert a cognizable equal protection

claim.   See id.; Koch v. Puckett, 
907 F.2d 524
, 530 (5th Cir.

1990).

     McKnight alleges that the prison where he is incarcerated

has a practice of retaliating against prisoners for using the

prison grievance system.   With respect to this claim, he argues

only generalities and does not identify particular allegations of

specific constitutional violations.     The district court did not

specifically address McKnight’s claim of retaliation by Officer

Grey.    Regardless, his claim fails as Officer Grey was not named

as a defendant in the lawsuit, and, although McKnight named three

wardens as defendants in his lawsuit, he has not demonstrated

that the wardens are liable for the alleged retaliation by

Officer Grey.    See Johnson v. Rodriguez, 
110 F.3d 299
, 310 (5th

Cir. 1997); Thompkins v. Belt, 
828 F.2d 298
, 303-04 (5th Cir.

1987).
                             No. 06-10776
                                  -3-

     McKnight complains that prison officials violate prisoners’

due process rights by failing to follow proper procedures when

reviewing prison disciplinary cases and that proper procedures

are not followed when determining how long a prisoner will remain

in close or medium custody after the prisoner is found guilty of

a disciplinary case and is given an indeterminate sentence.

These generalities do not state a claim for the violation of a

constitutional right.     See 
Koch, 907 F.2d at 530
.

     Moreover, McKnight does not address the district court’s

finding that his claims that a false disciplinary case was

brought against him and that he was denied due process during the

disciplinary proceedings were barred by Edwards v. Balisok, 
520 U.S. 641
(1997), and Heck v. Humphrey, 
512 U.S. 477
(1994).       As

McKnight fails to address the district court’s basis for

dismissing these claims, they are abandoned.     See Brinkmann v.

Dallas County Deputy Sheriff Abner, 
813 F.2d 744
, 748 (5th Cir.

1987).

     McKnight argues that his prison grievances, alleging

retaliation, were not properly reviewed and complains generally

of how prison grievances are handled in the prison where he is

incarcerated.   Because McKnight has no liberty interest in the

resolution of his grievances, his claims regarding the prison

grievance system do not state a claim regarding the violation of

a constitutional right.     See Geiger v. Jowers, 
404 F.3d 371
,

373-74 (5th Cir. 2005).
                            No. 06-10776
                                 -4-

     McKnight’s appeal is without arguable merit and, thus,

frivolous.   See Howard v. King, 
707 F.2d 215
, 219-20 (5th Cir.

1983).   Because the appeal is frivolous, it is dismissed.    5TH

CIR. R. 42.2.   The dismissal of this appeal as frivolous and the

district court’s dismissal of McKnight’s complaint constitute two

strikes for purposes of the 28 U.S.C. § 1915(g) bar.   See

Adepegba v. Hammons, 
103 F.3d 383
, 388 (5th Cir. 1996).      Once

McKnight accumulates three strikes, he may not proceed 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 § 1915(g).

     APPEAL DISMISSED; SANCTION WARNING ISSUED.

Source:  CourtListener

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