Deon Ballard v. Connie Pierce , 401 F. App'x 993 ( 2010 )

Case: 10-60276 Document: 00511301562 Page: 1 Date Filed: 11/22/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 22, 2010
No. 10-60276
Summary Calendar Lyle W. Cayce
Clerk
DEON SCOTT BALLARD,
Plaintiff-Appellant,
v.
CONNIE PIERCE; DEBRA PLATT; RONALD KING; CHRISTOPHER B. EPPS;
L. SINGLETON, Pin # 357175; TRACEY L. SANDERS,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 2:10-CV-1
Before KING, BENAVIDES, and ELROD, Circuit Judges:
PER CURIAM:*
Proceeding pro se, Deon Scott Ballard, Mississippi prisoner # 144373,
appeals the dismissal of his 42 U.S.C. § 1983 complaint for failure to state a
claim under 28 U.S.C. § 1915(e)(2)(B)(ii). Ballard’s motion to amend his
appellate brief is GRANTED.
In his complaint, Ballard alleges that prison officials violated state
correctional rules and prison policies by requiring him to work in the prison’s
*
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
Case: 10-60276 Document: 00511301562 Page: 2 Date Filed: 11/22/2010
No. 10-60276
dining hall without his consent in violation of the Due Process Clause and the
Thirteenth Amendment. After he refused to report to work, he alleges, he was
found guilty of failing to carry out a work assignment in several disciplinary
actions and sentenced each time to 30 days without telephone, visitation, and
store privileges. He argues that prison regulations and state law created a
protected liberty interest in being free from involuntary work assignment and
that he was wrongfully disciplined for refusing to comply with the assignment.
He also argues that the prison investigator was biased, the investigation was
inadequate under prison regulations, the adjudicator was biased, no evidence
supported the finding of guilt, the adjudicator failed to provide adequate reasons
for the guilty finding, and his prison appeal was mishandled.
We review a dismissal under § 1915(e)(2)(B)(ii) de novo. Samford v.
Dretke, 562 F.3d 674, 678 (5th Cir. 2009). Punishments such as the temporary
loss of telephone, visitation, and commissary privileges at issue here do not
“present the type of atypical, significant deprivation in which a State might
conceivably create a liberty interest” and do not implicate due process concerns.
See Sandin v. Conner, 515 U.S. 472, 486 (1995); see also Tilmon v. Prator, 368
F.3d 521, 522, 524 (5th Cir. 2004); Martin v. Scott, 156 F.3d 578, 579 n.1, 580
(5th Cir. 1998). The alleged violations of state law and prison policy arising from
Ballard’s work assignment and disciplinary proceedings, even if true, likewise
fail to state a claim for relief under § 1983. See Calhoun v. Hargrove, 312 F.3d
730, 734 (5th Cir. 2002). Finally, Ballard fails to state a claim under § 1983 for
a violation of the Thirteenth Amendment because he does not challenge the
validity of his conviction or allege facts that amount to unconstitutional
involuntary servitude. See U.S. Const. amend. XIII, § 1; Williams v. Henagan,
595 F.3d 610, 621-22 (5th Cir. 2010).
The instant appeal is without arguable merit and therefore frivolous. See
Samford, 562 F.3d at 678. Accordingly, it is dismissed. See 5th Cir. R. 42.2.
The dismissal of this appeal and the district court’s dismissal of Ballard’s
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Case: 10-60276 Document: 00511301562 Page: 3 Date Filed: 11/22/2010
No. 10-60276
complaint each count as a strike for purposes of § 1915(g). We caution Ballard
that, once 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
§ 1915(g); Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).
APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING ISSUED.
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