Atkins v. Bales ( 2022 )

Case: 21-40542 Document: 00516201254 Page: 1 Date Filed: 02/14/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
February 14, 2022
No. 21-40542
Lyle W. Cayce
Clerk
John Louis Atkins,
Plaintiff—Appellant,
versus
Julie D. Bales; Michael D. McNeil; William M. Wheat,
Defendants—Appellees.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:20-CV-600
Before Southwick, Graves, and Costa, Circuit Judges.
Per Curiam:*
John Louis Atkins, Texas prisoner # 2184778, moves for leave to
proceed in forma pauperis (IFP) on appeal of the dismissal of his 42 U.S.C.
§ 1983 complaint under 28 U.S.C. §§ 1915A(b)(1) and 1915(e)(2)(B) for
failure to state a claim upon which relief may be granted. By moving for leave
to proceed IFP on appeal, Atkins is challenging the district court’s
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 21-40542 Document: 00516201254 Page: 2 Date Filed: 02/14/2022
No. 21-40542
certification that his appeal is not taken in good faith. See Baugh v. Taylor,
117 F.3d 197, 202 (5th Cir. 1997).
In support of his IFP motion, Atkins reiterates his claim that his right
to due process was violated when the defendants allegedly failed to provide
him with a written statement of the facts and evidence in support of the
disciplinary ruling and that Heck v. Humphrey, 512 U.S. 477 (1994), does not
bar his claim. He fails to demonstrate a nonfrivolous issue for appeal with
respect to any other claims rejected by the district court.
The district court correctly determined that none of the punishments
that Atkins received following his prison disciplinary conviction implicate
due process concerns, see Sandin v. Conner, 515 U.S. 472, 483-84 (1995);
Meza v. Livingston, 607 F.3d 392, 399 (5th Cir. 2010), and his argument
regarding the district court’s alternative analysis based on Heck does not
present a nonfrivolous issue for appeal, see Howard v. King, 707 F.2d 215, 220
(5th Cir. 1983). Atkins has not demonstrated any other nonfrivolous issues
for appeal. Accordingly, his motion for leave to proceed IFP is DENIED,
and the appeal is DISMISSED as frivolous. See Baugh, 117 F.3d at 202 &
n.24; 5th Cir. R. 42.2.
The district court’s dismissal of Atkins’s complaint for failure to state
a claim upon which relief may be granted and the dismissal of this appeal as
frivolous count as strikes under § 1915(g). See Adepegba v. Hammons, 103
F.3d 383, 388 (5th Cir. 1996), abrogated in part on other grounds by Coleman v.
Tollefson, 575 U.S. 532, 537 (2015). Atkins is CAUTIONED that if he
accumulates three strikes, he may not 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 § 1915(g).
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