Sabur v. Anderson ( 2003 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-10857
Conference Calendar
BAQUEE ANTAR SABUR,
Plaintiff-Appellant,
versus
DEE ANDERSON,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:02-CV-202
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February 19, 2003
Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
Baquee Antar Sabur, Texas state prisoner # 0583653, appeals
from the district court’s dismissal of his civil-rights lawsuit,
filed under 42 U.S.C. § 1983, as frivolous and for failure to
state a claim upon which relief may be granted, pursuant to 28
U.S.C. § 1915(e)(2)(B)(i), (ii). This court reviews a dismissal
as frivolous for abuse of discretion. See Taylor v. Johnson, 257
F.3d 470, 472 (5th Cir. 2001). A dismissal under 28 U.S.C.
*
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that this opinion should not be published and is not precedent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. 02-10857
-2-
§ 1915(e)(2)(B)(ii) for failure to state a claim upon which
relief may be granted is reviewed under the same de novo standard
as a dismissal under FED. R. CIV. P. 12(b)(6). See Black v.
Warren, 134 F.3d 732, 733-34 (5th Cir. 1998).
Sabur has made no effort to refute the validity of the
purported penalogical interest in denying prisoners receipt of
hardback books and altered magazine and newspaper clippings. His
conclusional allegations that there is no penalogical interest
supporting the prison policies do not state a claim under 42
U.S.C. § 1983. See Mowbray v. Cameron County, Tex., 274 F.3d
269, 278 (5th Cir. 2001), cert. denied, 122 S.Ct. 1912 (2002).
Likewise, a prison official’s failure to follow the prison’s own
policies, procedures, or regulations does not, without more,
constitute a violation of due process. See Myers v. Klevenhagen,
97 F.3d 91, 94 (5th Cir. 1996).
Sabur also argues that he was denied access to the courts
because the law library was inadequately staffed, it was
insufficient, he was denied writing and legal material, and he
was not given sufficient access to the law library. Because
Sabur has not alleged that he was actually denied access to the
court or that any pending litigation was prejudiced by the
alleged deficiencies at the law library, he therefore has not
stated a claim cognizable in a 42 U.S.C. § 1983 complaint. See
Mann v. Smith, 796 F.2d 79, 84 n.5 (5th Cir. 1986).
No. 02-10857
-3-
There was neither error nor an abuse of discretion in the
district court’s judgment dismissing Sabur’s complaint. Because
he did not file an additional or amended notice of appeal from
the denial of his postjudgment motion, we are without
jurisdiction to entertain Sabur’s challenge to that order. See
Taylor, 257 F.3d at 475; FED. R. APP. P. 4(a)(4)(B)(ii).
The district court’s dismissal of this lawsuit as frivolous
and for failure to state a claim counts as a strike for purposes
of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383,
388 (5th Cir. 1996). We caution Sabur that if 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).
AFFIRMED; THREE-STRIKES WARNING ISSUED.