Nichols vs. Price, (5th Cir. 2002)
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* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR .
R. 47.5.4. IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 01-11264 Summary Calendar CARL J. NICHOLS, Plaintiff-Appellant, versus JOSEPH K. PRICE, Warden; STEVEN N. RICH, Assistant Warden; JAMES TURNER; LARRY J. PATTISON, Sergeant; JOHN W. THOMAS, Correctional Officer III; RICHARD A. DUFFY; JIMMY D. BAGBY; TOMMY R. ROBERT; JOHN DOE, #1; JOHN DOE, #2, Defendants-Appellees. Appeal from the United States District Court for the Northern District of Texas USDC No. 2:00-CV-173 March 14, 2002 Before GARWOOD, JONES and STEWART, Circuit Judges.
PER CURIAM: * Carl J. Nichols, Texas prisoner #670714, appeals the district court§ 1915(e). The district court did not abuse its discretion in denying NicholsÂ’ claim that he was denied access to courts as Nichols failed to show that the defendantsÂ’ actions prejudiced his position in any legal proceeding. See Lewis v. Casey , 518 U.S. 343, 350-51 (1996). NicholsÂ’ claims of retaliation for asking to speak to a supervisor about a correctional officerÂ’s conduct and for exercising his right to access to the courts are frivolous as Nichols failed to show that the correctional officers involved had any retaliatory intent. See Woods v. Smith , 60 F.3d 1161, 1166 (5th Cir. 1995).
NicholsÂ’ claim that he was denied due process at his disciplinary hearing because he was not allowed to call any witnesses is likewise frivolous. Nichols may not recover damages for an allegedly unconstitutional disciplinary proceeding unless he establishes that the disciplinary proceeding has been reversed, expunged, or declared invalid. See Edwards v. Balisok , 520 U.S. 641, 646-48 (1997). Nichols fails to make such a showing.
NicholsÂ’ 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 5 TH C IR . R. 42.2. The dismissal of this appeal as frivolous and the district court's dismissal of this lawsuit as frivolous constitute two strikes for purposes of the 28 U.S.C. § 1915(g) bar. Adepegba v. Hammons , 103 F.3d 383, 388 (5th Cir. 1996). We caution Nichols that once he accumulates three strikes, he may not proceed in forma pauperis 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).
DISMISSED AS FRIVOLOUS; WARNING ISSUED.
No. 01-11264
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This document cites
- US Code - Title 28: Judiciary and Judicial Procedure - 28 USC 1915 - Sec. 1915. Proceedings in forma pauperis
- U.S. Supreme Court - Edwards v. Balisok, 520 U.S. 641 (1997)
- U.S. Supreme Court - Lewis v. Casey, 518 U.S. 343 (1996)
- U.S. Court of Appeals for the Fifth Circuit - Valentino B. Adepegba, Plaintiff-Appellant, v. Billy G. Hammons, Individually and in His Official Capacity as Special Agent Assigned To F C I Oakdale; John L. Nixon, Individually and in His Official Capacity as Acting Supervisory Special Agent At F C I Oakdale, Defendants-Appellees., 103 F.3d 383 (5th Cir. 1996)
- U.S. Court of Appeals for the Fifth Circuit - Claude E. Woods, Plaintiff-Appellee, Cross-Appellant, v. Larry Smith, Et Al., Defendants-Appellants, Cross-Appellees., 60 F.3d 1161 (5th Cir. 1995)
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