Filed: Apr. 17, 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 April 17, 2007 Charles R. Fulbruge III Clerk No. 06-10547 Conference Calendar MOHAMMED HAMID DEHGHANI, Plaintiff-Appellant, versus RICHARD D. VOGELGESANG, Warden; MICHAEL SAVERS, Assistant Warden; WILLIAM CULLUM, Captain; JASON COOK, Lieutenant; AMY LOWERY, Counsel Substitute, Defendants-Appellees. - Appeal from the United States District Court for the Northern District of Texas USD
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT April 17, 2007 Charles R. Fulbruge III Clerk No. 06-10547 Conference Calendar MOHAMMED HAMID DEHGHANI, Plaintiff-Appellant, versus RICHARD D. VOGELGESANG, Warden; MICHAEL SAVERS, Assistant Warden; WILLIAM CULLUM, Captain; JASON COOK, Lieutenant; AMY LOWERY, Counsel Substitute, Defendants-Appellees. - Appeal from the United States District Court for the Northern District of Texas USDC..
More
United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 17, 2007
Charles R. Fulbruge III
Clerk
No. 06-10547
Conference Calendar
MOHAMMED HAMID DEHGHANI,
Plaintiff-Appellant,
versus
RICHARD D. VOGELGESANG, Warden; MICHAEL SAVERS, Assistant Warden;
WILLIAM CULLUM, Captain; JASON COOK, Lieutenant; AMY LOWERY,
Counsel Substitute,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:05-CV-239
--------------------
Before HIGGINBOTHAM, BENAVIDES, and PRADO, Circuit Judges.
PER CURIAM:*
Mohammed Hasmid Dehghani, Texas prisoner # 881419, appeals
the dismissal of his 42 U.S.C. § 1983 complaint as frivolous and
for failure to state a claim pursuant to 28 U.S.C. § 1915A(b)(1)
and 42 U.S.C. § 1997e(c)(1). Dehghani alleged violations of his
constitutional rights arising out of disciplinary proceedings
against him resulting in the loss of 30 days of recreation and 30
days of commissary privileges, restriction to his cell for 30
days, and placement in solitary confinement for one day. It
*
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this opinion should not be published and is not precedent except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. 06-10547
-2-
appears, although it is unclear, that his visitation rights may
have been suspended for 30 days. We review a dismissal of a
prisoner complaint as frivolous for abuse of discretion, see
Berry v. Brady,
192 F.3d 504, 507 (5th Cir. 1999), and for
failure to state a claim de novo. Harris v. Hegmann,
198 F.3d
153, 156 (5th Cir. 1999).
None of the punishments imposed gives rise to a liberty
interest protected by due process, as none represents an atypical
and significant hardship in relation to the ordinary incidents of
prison life. See Sandin v. Conner,
515 U.S. 472, 483 (1995);
Madison v. Parker,
104 F.3d 765, 768 (5th Cir. 1997). Dehghani’s
assertion that Lt. Cook brought a false charge against him
likewise fails to state a constitutional claim. See Castellano
v. Fragozo,
352 F.3d 939, 945 (5th Cir. 2003)(en banc).
Given the lack of any liberty interest protected by due
process, there is no need to address Dehghani’s claims that the
conduct of the disciplinary hearing violated his right to due
process, nor need we address the lack of responsibility of the
warden or assistant warden under a respondeat superior theory.
With respect to Dehghani’s separate claims that the warden and
assistant warden failed adequately to investigate his grievance,
the district court correctly determined that such allegations do
not give rise to a constitutional claim. See Geiger v. Jowers,
404 F.3d 371, 373-374 (5th Cir. 2005).
No. 06-10547
-3-
As this appeal lacks any arguable merit, we dismiss it as
frivolous. See 5TH CIR. R. 42.2; Adepegba v. Hammons,
103 F.3d
383, 388 (5th Cir. 1996). The dismissal by the district court of
Dehghani’s suit and the dismissal of this appeal as frivolous
count as two strikes under 28 U.S.C. § 1915(g). See
Adepegba,
103 F.3d at 387-88. In addition, Dehghani has accumulated two
strikes in Dehghani v. Vogelgesang, Case No. 06-10539, decided on
this same date. As Dehghani has now accumulated at least three
strikes, he is barred from proceeding in forma pauperis pursuant
to 28 U.S.C. § 1915 while he is incarcerated or detained in any
facility unless he is under imminent danger of serious physical
injury.
APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR IMPOSED.