Kirk Bagby v. Jerry Karriker, III ( 2013 )

Case: 13-40476 Document: 00512357789 Page: 1 Date Filed: 08/29/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 29, 2013
No. 13-40476
Summary Calendar Lyle W. Cayce
Clerk
KIRK MARTIN BAGBY,
Plaintiff-Appellant
v.
JERRY R. KARRIKER, III; RICK THALER; WARDEN TODD FOXWORTH;
FRANCINE SOUKUP; REGINA OLIVER,
Defendants-Appellees
Appeals from the United States District Court
for the Eastern District of Texas
USDC No. 6:12-CV-266
Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
Kirk Martin Bagby, Texas prisoner # 1582340, seeks leave to proceed in
forma pauperis (IFP) to appeal the district court’s dismissal of his 42 U.S.C.
§ 1983 complaint against Sergeant Jerry R. Karriker, III, TDCJ-CID Director
Rick Thaler, Warden Todd Foxworth, Officer Francine Soukup, and counsel
substitute Regina Oliver. The district court certified that an appeal would not
be taken in good faith. By moving in this court for IFP status, Bagby is
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 13-40476
challenging that certification. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.
1997). Our inquiry into whether the appeal is taken in good faith “is limited to
whether the appeal involves legal points arguable on their merits (and therefore
not frivolous).” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal
quotation marks and citation omitted).
Bagby has abandoned, by failing to brief, his claims against Soukup,
Foxworth, and Thaler. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.
1993). Additionally, he has not shown that he will raise a nonfrivolous issue
with regard to the dismissal as frivolous and for failure to state a claim of his
claim against Oliver. See Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005).
Bagby cannot maintain a § 1983 action against Oliver based on her actions as
his counsel substitute. See Banuelos v. McFarland, 41 F.3d 232, 234 (5th Cir.
1995).
Further, our de novo review of the record shows no potential nonfrivolous
issue with regard to the dismissal as frivolous and for failure to state a claim of
Bagby’s false disciplinary claim against Karriker. See Geiger, 404 F.3d at 373.
A prisoner’s protected liberty interests are “generally limited to freedom from
restraint which, while not exceeding the sentence in such an unexpected manner
as to give rise to protection by the Due Process Clause of its own force . . .
nonetheless imposes atypical and significant hardship on the inmate in relation
to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484
(1995). Bagby’s cell and commissary restrictions and his reduction in
classification status do not implicate the Due Process Clause. See id.; Luken v.
Scott, 71 F.3d 192, 193 (5th Cir. 1995). Bagby may not obtain relief for those
elements of his punishment. Because Bagby was ineligible for release on
mandatory supervision, the district court did not err in finding that Bagby failed
to state a due process claim with respect to the loss of his good-time credits. See
Arnold v. Cockrell, 306 F.3d 277, 278-79 (5th Cir. 2002). Although Bagby, who
is serving a sentence for robbery, is eligible for parole; see TEX. GOV’T CODE ANN.
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No. 13-40476
§ 508.145, he does not have a constitutionally protected liberty interest in
obtaining parole. See Madison v. Parker, 104 F.3d 765, 768 (5th Cir.1997).
Lastly, we find no error in the grant of summary judgment in favor of
Karriker on Bagby’s excessive force claim. See Dillon v. Rogers, 596 F.3d 260,
266 (5th Cir. 2010). The summary judgment evidence presented below
demonstrates that Bagby failed to submit a Step Two grievance complaining of
the use of force. Thus, the claim was not properly exhausted. See Johnson v.
Johnson, 385 F.3d 503, 515 (5th Cir. 2004).
Bagby’s appeal is without arguable merit and is thus frivolous. See
Howard, 707 F.2d at 219-20. Because the appeal is frivolous, it is dismissed.
See 5TH CIR. R. 42.2. Bagby’s motion for appointment of counsel is denied.
The dismissal of Bagby’s appeal counts as a strike for purposes of 28
U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir.
1996). Bagby previously accumulated two strikes and has now, therefore,
accumulated at least three strikes. See Bagby v. Wichita Falls County
Courthouse, 323 F. App’x 389, 389 (5th Cir. 2009). Accordingly, he is barred
from proceeding 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.” § 1915(g).
IFP MOTION DENIED; APPEAL DISMISSED; MOTION FOR
APPOINTMENT OF COUNSEL DENIED; § 1915(g) BAR IMPOSED.
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