Duplantis v. Carmona , 85 F. App'x 397 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 16, 2004
Charles R. Fulbruge III
Clerk
No. 03-20671
Summary Calendar
JOSEPH D. DUPLANTIS; JOHN HEGNET,
Plaintiffs-Appellants,
versus
EDUARDO CARMONA, Warden; GARY L. JOHNSON, Director,
Texas Department of Criminal Justice, Institutional Division;
MAC STRINGFELLOW, Chairman,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02-CV-4491
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Before SMITH, DUHÉ, and WIENER, Circuit Judges.
PER CURIAM:1
Joseph D. Duplantis, Texas prisoner #871610, and John Hegnet,
Texas prisoner #541126, appeal from the dismissal of their 42
U.S.C. § 1983 action as frivolous, pursuant to 28 U.S.C. §
1915A(b). Duplantis and Hegnet contend that Administrative
Directive 03.72, which governs the amount of storage space
available to prisoners, violates the Due Process and Equal
Protection Clauses.
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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that this opinion should not be published and is not precedent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.
We review dismissals under 28 U.S.C. § 1915A de novo.
Velasquez v. Woods, 329 F.3d 420, 421 (5th Cir. 2003). A complaint
can be dismissed as frivolous “if it lacks any arguable basis in
law or fact.” Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir.
1999).
“The requirements of procedural due process apply only to the
deprivation of interests encompassed by the Fourteenth Amendment’s
protection of liberty and property.” Board of Regents v. Roth, 408
U.S. 564, 569 (1972). In addressing a previous version of the
storage regulation, we stated that it was “highly dubious that a
facially neutral prison storage space limitation” violated a
prisoner’s exercise of constitutional rights. See Long v. Collins,
917 F.2d 3, 4 (5th Cir. 1990). Duplantis and Hegnet have failed to
show that A.D. 03.72 violates the Due Process Clause.
Duplantis and Hegnet’s contention that the directive violates
equal protection because prisoners on older units are disadvantaged
relative to prisoners on newer units relies purely on the disparate
impact of the directive and therefore is unavailing. See United
States v. Galloway, 951 F.2d 64, 65 (5th Cir. 1992). Duplantis and
Hegnet do not allege facts suggesting that they were similarly
situated to prisoners in those portions of their prison unit that
were exempted from a major shakedown designed to implement the
directive; the district court therefore did not err by dismissing
their equal protection claim as frivolous. See Hilliard v. Board
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of Pardons and Paroles, 759 F.2d 1190, 1193 (5th Cir. 1985).
Because the district court did not err by dismissing the action as
frivolous, Duplantis and Hegnet’s contention that they were
entitled to injunctive relief is moot.
Duplantis and Hegnet’s appeal is without arguable merit and is
frivolous. Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).
The appeal therefore is dismissed. 5TH CIR. R. 42.2. The district
court’s dismissal of the current case and this court’s dismissal of
the appeal count as two strikes against Duplantis and Hegnet for
purposes of 28 U.S.C. § 1915(g). Adepegba v. Hammons, 103 F.3d
383, 387-88 (5th Cir. 1996). Duplantis and Hegnet are warned that
once they accumulate three strikes, they may not proceed in forma
pauperis (IFP) in any civil action or appeal unless they are “under
imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).
APPEAL DISMISSED. 5TH CIR. R. 42.2. 28 U.S.C. § 1915(g)
SANCTION WARNING IMPOSED.
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