Elawyers Elawyers
Washington| Change

Roth v. Johnson, 01-60527 (2001)

Court: Court of Appeals for the Fifth Circuit Number: 01-60527 Visitors: 19
Filed: Dec. 13, 2001
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 01-60527 Conference Calendar JAMES ALLEN ROTH, Plaintiff-Appellant, versus ROBERT JOHNSON, Commissioner; JAMES V. ANDERSON; WALTER BOOKER; BOBBY BUTLER; ANN LEE, Director of Offender Services; LAWRENCE HENDERSON; JIMMY PARKER; GENE CROCKER, Chief of Security; ROBERT ARMSTRONG, Defendants-Appellees. - Appeal from the United States District Court for the Northern District of Mississippi USDC No. 4:00-CV-294-D-A - December 12, 2001 Bef
More
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                            No. 01-60527
                        Conference Calendar



JAMES ALLEN ROTH,

                                         Plaintiff-Appellant,

versus

ROBERT JOHNSON, Commissioner;
JAMES V. ANDERSON; WALTER BOOKER;
BOBBY BUTLER; ANN LEE, Director
of Offender Services; LAWRENCE HENDERSON;
JIMMY PARKER; GENE CROCKER, Chief
of Security; ROBERT ARMSTRONG,

                                         Defendants-Appellees.

                       --------------------
           Appeal from the United States District Court
             for the Northern District of Mississippi
                     USDC No. 4:00-CV-294-D-A
                       --------------------
                         December 12, 2001
Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

     James Allen Roth, Mississippi inmate #76800, appeals the

district court’s dismissal of his pro se, in forma pauperis

(“IFP”), 42 U.S.C. § 1983 complaint for failure to state a claim

upon which relief may be granted.   Roth contends that he has been

confined in administrative segregation for more than three years

without due process and despite the fact that he has not received

disciplinary action.   Roth contends that his confinement is a

     *
        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that this opinion should not be published and is not precedent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. 01-60527
                                  -2-

violation of his right to due process and his right against cruel

and unusual punishment.

     We review de novo the district court’s dismissal of an

inmate’s IFP, 42 U.S.C. § 1983 complaint for failure to state a

claim upon which relief may be granted.     Black v. Warren, 
134 F.3d 732
, 734 (5th Cir. 1998); 28 U.S.C. § 1915(e)(2)(B)(ii).

     An inmate does not have a protectible property or liberty

interest in his custody classification.     Moody v. Baker, 
857 F.2d 256
, 257-58 (5th Cir. 1988).    Administrative segregation is an

incident to ordinary prison life and, absent extraordinary

circumstances, is not a ground for a constitutional claim.

Pichardo v. Kinker, 
73 F.3d 612
, 612 (5th Cir. 1996).    The loss

of the opportunity to earn good time credits does not implicate a

constitutionally protected liberty interest.     See Luken v. Scott,

71 F.3d 192
, 193 (5th Cir. 1995).

     Roth has not shown that his extended confinement in

administrative segregation amounts to a constitutional violation.

See Sandin v. Conner, 
515 U.S. 472
, 483-86 (1995).    The record

refutes Roth’s contentions regarding the reasons for his

confinement to administrative segregation and demonstrates that

Roth is receiving periodic reviews of his custodial

classification.   Roth has not demonstrated the violation of a

constitutional right.     See Allison v. Kyle, 
66 F.3d 71
, 73 (5th

Cir. 1995).   Roth’s contention that the district court’s February

14, 2001, order required the defendants to respond to his

complaint and that the district court erred by denying his

motions for default judgments are without merit.
                           No. 01-60527
                                -3-

     Roth’s appeal is without arguable merit and 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 the appeal as frivolous

and the district court’s dismissal of Roth’s 42 U.S.C. § 1983

complaint for failure to state a claim count as “strikes” under

the three-strikes provision of 28 U.S.C. § 1915(g).    See Adepegba

v. Hammons, 
103 F.3d 383
, 387-88 (5th Cir. 1996); 28 U.S.C.

§ 1915(e)(2)(B)(ii).   Roth is CAUTIONED that if he accumulates a

third “strike” under 28 U.S.C. § 1915(g), he will not be able 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).

     APPEAL DISMISSED; THREE-STRIKES WARNING ISSUED.

Source:  CourtListener

Can't find what you're looking for?

Post a free question on our public forum.
Ask a Question
Search for lawyers by practice areas.
Find a Lawyer