Lagaite v. Carillo ( 1999 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-40468
Summary Calendar
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LUIS S. LAGAITE, JR., ET AL.,
Plaintiffs,
LUIS S. LAGAITE, JR.,
Plaintiff-Appellant,
versus
DOMINGO A. CARILLO; DAVID M.
BLACKWELL, JUAN J. QUINTERO;
OSCAR OLIVAREZ; PHILLIP LEWIS;
WILLIAM A. BOOTHE; JO ANN DAVIS;
RENE MALDONADO; SABAS ENCINIA, JR.,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-98-CV-382
_________________________________________________________________
November 26, 1999
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Luis S. Lagaite, Jr., Texas prisoner # 762508, appeals the
district court’s dismissal of his 42 U.S.C. § 1983 civil rights
action as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
Lagaite argues that the magistrate judge abused her discretion in
dismissing his claims that he was placed in administrative
*
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this opinion should not be published and is not precedent except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.
segregation without due process and that his line classification
was not upgraded despite a clean disciplinary record. Lagaite’s
placement in administrative segregation does not constitute a
violation of a constitutionally cognizable liberty interest. See
Sandin v. Conner, 515 U.S. 472, 484 (1995); Luken v. Scott, 71 F.3d
192, 193 (5th Cir. 1995). Lagaite also has no constitutionally
protected liberty interest in his line classification. See Neals
v. Norwood, 59 F.3d 530, 533 (5th Cir. 1995).
Lagaite argues that the magistrate judge abused her discretion
in dismissing his claim that David Blackwell placed him in
administrative segregation in a cell that had no windows and a
steel-plated door in retaliation for Lagaite’s complaints
concerning his line classification. Lagaite has failed to allege
“a chronology of events from which retaliation may plausibly be
inferred.” See Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995).
Lagaite argues that the magistrate judge abused her discretion
in dismissing his claim concerning the confiscation and destruction
of his personal property. Because Texas provides an adequate
postdeprivation remedy, Lagaite does not have a constitutional
claim concerning the confiscation or destruction of his personal
property. See Hudson v. Palmer, 468 U.S. 517, 533 (1984); Myers v.
Adams, 728 S.W.2d 771, 772 (Tex. 1987).
Lagaite argues that the magistrate judge abused her discretion
in dismissing his claim concerning the conditions of his
confinement. Lagaite acknowledges that he received a mattress and
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other necessities on the same day that he was placed in the cell.
He also acknowledges that he received cleaning supplies to clean
the dirty cell of which he complains. Lagaite has not shown that
he was exposed to egregious physical conditions that deprived him
of his basic human needs. See Rhodes v. Chapman, 452 U.S. 337, 347
(1981). Lagaite has also failed to show that the defendants were
aware of facts from which an inference of an excessive risk to
Lagaite’s health or safety could be drawn and that they drew such
an inference. See Farmer v. Brennan, 515 U.S. 825, 837 (1994).
Lagaite argues that the magistrate judge abused her discretion
in dismissing his claim that the defendants denied him access to
the courts because they interfered with his legal mail, limited his
access to law books, and delayed providing him with indigent
supplies. Lagaite alleged that the defendants’ actions prejudiced
him in only one case concerning his child visitation rights.
Lagaite’s right of access to the courts is limited to his right to
challenge his conviction or the conditions of his confinement. See
Lewis v. Casey, 518 U.S. 343, 355 (1996). Therefore, the
magistrate judge did not abuse her discretion in dismissing as
frivolous his claim that he was denied access to the courts.
Lagaite’s appeal is without arguable merit and is thus
frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983). Because his appeal is frivolous, it is DISMISSED. See 5th
Cir. R. 42.2.
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The district court’s dismissal of Lagaite’s § 1983 action as
frivolous counts as a “strike” for purposes of 28 U.S.C. § 1915(g),
and the dismissal of this appeal as frivolous also counts as a
“strike” under § 1915(g). Lagaite already had two “strikes” in
Lagaite v. Hale, No. H-97-2377 (S.D. Tex. November 25, 1997) and
Lagaite v. Hale, No. 97-21034 (5th Cir. October 22, 1998). Lagaite
has now accumulated at least three “strikes” under § 1915(g). 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).
APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR IMPOSED.
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