Florence v. Deel , 252 F. App'x 697 ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 31, 2007
No. 06-40465
Summary Calendar Charles R. Fulbruge III
Clerk
THOMAS WAYNE FLORENCE
Plaintiff-Appellant
v.
Captain Unknown DEEL; Sergeant Unknown ROTH; JACOB BAYER,
Corrections Officer; Major Unidentified MONEYHAM; Warden Unidentified
WESTFALL
Defendants-Appellees
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:05-CV-307
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Thomas Wayne Florence, Texas prisoner # 654322, appeals the district
court’s dismissal of his 42 U.S.C. § 1983 complaint for failure to state a claim
upon which relief could be granted and as frivolous. See 28 U.S.C. § 1915A.
Florence’s complaint alleged that the defendants conspired and retaliated
*
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should not be published and is not precedent except under the limited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. 06-40465
against him and maliciously prosecuted him in disciplinary proceeding number
20050042060.
We review the district court’s dismissal of Florence’s § 1983 complaint de
novo. Ruiz v. United States, 160 F.3d 273, 275 (5th Cir. 1998). Florence’s only
argument on appeal is that the district court erred in determining that his
reduction in line classification status did not implicate a constitutionally
protected liberty interest. The district court’s determination was based on our
holding in Malchi v. Thaler, 211 F.3d 953 (5th Cir. 2000). Florence argues that
Malchi was incorrectly decided and that we should revisit that decision. Absent
an intervening Supreme Court or en banc decision, we cannot overrule the
decision of a prior panel of this court. Foster v. Quarterman, 466 F.3d 359,
367-68 (5th Cir. 2006), cert. denied, 127 S. Ct. 2099 (2007). The district court
correctly dismissed Florence’s complaint, and all of his outstanding motions
before this court are denied.
The 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). Florence
is warned that the district court’s dismissal of his complaint for failure to state
a claim upon which relief could be granted and this court’s dismissal of his
appeal as frivolous both count as strikes for purposes of 28 U.S.C. § 1915(g) and
that if he accumulates three strikes, he will not be able to 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 Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996); § 1915(g).
APPEAL DISMISSED AS FRIVOLOUS; ALL OUTSTANDING MOTIONS
DENIED; SANCTION WARNING ISSUED.
2