Kenneth Menard v. Timothy Evans , 433 F. App'x 236 ( 2011 )

Case: 11-40166 Document: 00511541293 Page: 1 Date Filed: 07/15/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 15, 2011
No. 11-40166
Summary Calendar Lyle W. Cayce
Clerk
KENNETH WAYNE MENARD,
Plaintiff-Appellant,
versus
TIMOTHY L. EVANS; SERGEANT APRIL JENKINS,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Texas
No. 5:10-CV-227
Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Kenneth Menard, Texas prisoner # 724683, seeks to appeal the dismissal
of his 42 U.S.C. § 1983 complaint, in which he alleged that he was subjected to
a visual body cavity search in the presence of female prison employees in viola-
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-40166 Document: 00511541293 Page: 2 Date Filed: 07/15/2011
No. 11-40166
tion of the Fourth Amendment. The district court dismissed the complaint both
as frivolous and for failure to state a claim, pursuant to 28 U.S.C. § 1915A(b)(1).
Accordingly, our review is de novo. See Geiger v. Jowers, 404 F.3d 371, 373 (5th
Cir. 2005).
The invasion of privacy that Menard alleged was no greater than this court
has previously held to be constitutional. See Letcher v. Turner, 968 F.2d 508,
510 (5th Cir. 1992); Elliott v. Lynn, 38 F.3d 188, 190-92 (5th Cir. 1994); Oliver
v. Scott, 276 F.3d 736, 747 (5th Cir. 2002). Menard’s appeal is without arguable
merit, and we dismiss it as frivolous. See 5TH CIR. R. 42.2.
The dismissal of the complaint by the district court as frivolous and for
failure to state a claim and the dismissal of the appeal as frivolous count as
strikes pursuant to 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d
383, 385-87 (5th Cir. 1996). Menard garnered a strike in Menard v. Wagner, No.
3:09-CV-8 (S.D. Tex. Mar. 2, 2011). Accordingly, he has three strikes and is now
barred under § 1915(g) from proceeding in forma pauperis in any civil action or
appeal filed while he is incarcerated or detained in any facility unless he is un-
der imminent danger of serious physical injury. See § 1915(g).
Menard has also filed a motion for appointment of counsel. Because this
matter is not particularly complex, and Menard has shown an ability to prepare
a cogent brief and cite relevant facts and law, the motion is DENIED. See
Schwander v. Blackburn, 750 F.2d 494, 502 (5th Cir. 1985).
2