Branch v. Ladner ( 2021 )


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  • Case: 19-60802     Document: 00516116940         Page: 1     Date Filed: 12/03/2021
    United States Court of Appeals
    for the Fifth Circuit
    United States Court of Appeals
    Fifth Circuit
    FILED
    No. 19-60802                       December 3, 2021
    Summary Calendar
    Lyle W. Cayce
    Clerk
    Sylvester Lee Branch,
    Plaintiff—Appellant,
    versus
    Brian Ladner, Warden, Central Mississippi Correctional Facility Area II,
    Defendant—Appellee.
    Appeal from the United States District Court
    for the Southern District of Mississippi
    USDC No. 3:17-CV-252
    Before Smith, Stewart, and Graves, Circuit Judges.
    Per Curiam:*
    Sylvester Lee Branch, Mississippi prisoner #M5290, proceeding pro
    se and in forma pauperis (IFP), appeals the district court’s dismissal of his
    42 U.S.C. § 1983 complaint for failure to state a claim upon which relief may
    be granted under 28 U.S.C. § 1915(e)(2)(B)(ii). He has also filed a motion
    *
    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    opinion should not be published and is not precedent except under the limited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: 19-60802      Document: 00516116940          Page: 2    Date Filed: 12/03/2021
    No. 19-60802
    for appointment of counsel. We review the district court’s dismissal de novo,
    using the standard that applies to dismissals under Federal Rule of Civil
    Procedure 12(b)(6). Rogers v. Boatright, 
    709 F.3d 403
    , 407 (5th Cir. 2013).
    Branch argues, as he did in the district court, that Warden Brian
    Ladner failed to conduct an adequate investigation during his prison
    disciplinary proceedings, which resulted in an informal two-week loss of all
    privileges and two concurrent 30-day losses of privileges, and thus violated
    his due process rights. Branch’s punishment does not result in the atypical
    and significant hardship contemplated by Sandin v. Conner, 
    515 U.S. 472
    , 484
    (1995), and therefore does not implicate a protected liberty interest, see
    Malchi v. Thaler, 
    211 F.3d 953
    , 958 (5th Cir. 2000). Given this, we need not
    consider whether the procedures that attended those punishments were
    constitutionally sufficient. See Meza v. Livingston, 
    607 F.3d 392
    , 399 (5th Cir.
    2010).
    Accordingly, the judgment of the district court is AFFIRMED.
    Branch’s motion for appointment of counsel is DENIED. The district
    court’s dismissal of Branch’s complaint counts as a strike under 28 U.S.C.
    § 1915(g).     See Coleman v. Tollefson, 
    575 U.S. 532
    , 537-40 (2015).
    Accordingly, Branch is CAUTIONED that if he accumulates three strikes
    under § 1915(g) , he will not be allowed to 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.
    2
    

Document Info

Docket Number: 19-60802

Filed Date: 12/3/2021

Precedential Status: Non-Precedential

Modified Date: 12/4/2021