Lann v. Cockrell ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 17, 2006
Charles R. Fulbruge III
Clerk
No. 04-20964
Summary Calendar
SIE JOE LANN
Plaintiff - Appellant
v.
JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION, D CHANCE; G MORH; JD
SEIGLE; RAY GOODRUM; JOE S FERNALD
Defendants - Appellees
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:03-CV-2073
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Before KING, WIENER and DeMOSS, Circuit Judges.
PER CURIAM:*
Sie Joe Lann appeals the dismissal of his 28 U.S.C. § 1983
civil rights action as frivolous under 28 U.S.C. § 1915A. We
review dismissals under § 1915A de novo. Ruiz v. United States,
160 F.3d 273, 275 (5th Cir. 1998).
On appeal, Lann argues that prison officials denied him
access to the courts by confiscating his legal documents pursuant
to a policy that limits a prisoner’s storage space. Lann has
*
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this opinion should not be published and is not precedent except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. 04-20964
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failed to establish, however, that the prison’s storage policy
actually prejudiced his ability to pursue a legal claim. See
Lewis v. Casey, 518 U.S. 343, 351 (1996); Christopher v. Harbury,
536 U.S. 403, 415 (2002). Thus, his claim fails.
Lann argues for the first time on appeal that the defendants
violated their own regulations, his equal protection and Fourth
Amendment rights, and the Privileges and Immunities Clause by
their actions. A party may not raise an issue for the first time
on appeal merely because he believes that he might succeed on a
different theory of recovery. See Leverette v. Louisville Ladder
Co., 183 F.3d 339, 342 (5th Cir. 1999). We do not address these
arguments.
Lann argues that the district court erred in finding that he
had not shown a claim of retaliation by the defendants for his
questioning them as to his rights, which he terms petitioning for
redress of grievances. To state a claim, Lann must allege a
protected right and either produce direct evidence of a
retaliatory motive or allege a chronology of events from which
the court plausibly may infer a retaliatory motive. Woods v.
Smith, 60 F.3d 1161, 1164 (5th Cir. 1995). “[W]here internal
grievance procedures are available,” a prison has the authority
“to circumscribe the manner in which a grievance or criticism
right is exercised.” Freeman v. Tex. Dep’t of Crim. Justice, 369
F.3d 854, 864 (5th Cir. 2004) (allowing proscription of internal
circulation of petition within prison). “Prison officials may
No. 04-20964
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legitimately punish inmates who verbally confront institutional
authority without running afoul of the First Amendment.” Id.
Questioning a prison officer as to his authority to enforce
prison regulations is therefore not a protected activity under
the First Amendment. Nor has Lann shown direct evidence of
retaliation or alleged a chronology of events from which we can
plausibly infer a retaliatory motive.
Lann argues that the district judge was biased against him
and should be recused. An allegation of bias stemming from a
judge’s adverse ruling is not sufficient to support a finding of
bias under 28 U.S.C. § 455. See Liteky v. United States, 510
U.S. 540, 555 (1994).
Lann’s appeal is without arguable merit and is dismissed as
frivolous. See 5th Cir. R. 42.2; Howard v. King, 707 F.2d 215,
219-20 (5th Cir. 1983). The district court’s dismissal of Lann’s
complaint as frivolous and this dismissal both count as strikes
under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d
383, 387-88 (5th Cir. 1996). Lann is warned that if he
accumulates a third strike, 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).
APPEAL DISMISSED; SANCTION WARNING ISSUED