Comeaux v. Stalder ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 21, 2008
No. 08-30221
Summary Calendar Charles R. Fulbruge III
Clerk
ERNEST RANDAL COMEAUX,
Plaintiff–Appellant,
v.
RICHARD STALDER; VENETIA MICHAELS; WILLIAM HOLLENSHEAD;
EARL BENSON; JERRY GIFFORD; JAMEY MOORE; JOHN ROBINSON;
KIATONYA MAJOR; BECKY MOSS; SARA BILBERRY; LONNIE NAIL; RAY
ANDERSON,
Defendants–Appellees.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:06-CV-367
Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Ernest Randal Comeaux, Louisiana prisoner # 409283, seeks leave to
proceed in forma pauperis (IFP) on appeal from the district court’s dismissal of
his 42 U.S.C. § 1983 complaint. He has also filed a motion for judicial notice of
adjudicative facts. For the following reasons, we deny both motions and dismiss
Comeaux’s appeal.
*
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should not be published and is not precedent except under the limited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. 08-30221
A district court may deny a motion for leave to appeal IFP by certifying
that the appeal is not taken in good faith and by providing written reasons for
the certification.1 A motion in this court to proceed IFP is construed as a
challenge to the district court’s certification.2 This court’s 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).”3
Comeaux’s IFP motion fails to assert error in the district court’s judgment,
and we do not consider pleadings that litigants attempt to incorporate by
reference.4 We construe Comeaux’s motion for judicial notice liberally as a brief
in support of his IFP motion.
Comeaux’s claims revolve primarily around a disciplinary proceeding in
which he was convicted of violating former Rule 30k of the Louisiana
Disciplinary Rules and Procedures, which had been declared unconstitutional
by a district court. That infraction was the basis for a subsequent disciplinary
conviction, confinement in administrative segregation, the loss of privileges, and
the denial of admission into a prison inmate honor program.
Comeaux’s placement in administrative segregation while the infraction
was being investigated and the loss of commissary and recreation privileges do
1
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); FED. R. APP. P. 24(a).
2
See Baugh, 117 F.3d at 202.
3
Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal quotation
marks and citation omitted).
4
See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
2
No. 08-30221
not give rise to a constitutionally protected interest.5 Similarly, Comeaux has
not identified a protected interest in participation in the inmate honor program.6
Comeaux’s conclusory assertions of retaliation and equal protection
violations with respect to the inmate honor program are insufficient and are
undermined by Comeaux’s later admission to the program in accordance with
program criteria once his disciplinary conviction was more than one year old.
He failed to allege facts or to demonstrate retaliatory or discriminatory motive.7
Comeaux’s challenges to the administrative remedy procedures used to process
his administrative grievances likewise fail to implicate a constitutional right.8
Comeaux does not address the dismissal of his claims regarding conditions
of confinement, the loss of certain money from food sales, or the dismissal of his
claims for monetary damages as barred by Heck v. Humphrey9 and Edwards v.
Balisok.10 Accordingly, he has abandoned those claims.11
Comeaux has not shown that the district court’s certification was incorrect.
Thus, we deny Comeaux’s IFP motion. As the appeal is without arguable legal
5
See Sandin v. Conner, 515 U.S. 472, 478, 486 (1995); Malchi v. Thaler,
211 F.3d 953, 958 (5th Cir. 2000).
6
See Bulger v. U.S. Bureau of Prisons, 65 F.3d 48, 49-50 (5th Cir. 1995).
7
See Woods v. Smith, 60 F.3d 1161, 1164 (5th Cir. 1995); Thompson v.
Patteson, 985 F.2d 202, 207 (5th Cir.1993).
8
See Geiger v. Jowers, 404 F.3d 371, 373-74 (5th Cir. 2005).
9
512 U.S. 477 (1994).
10
520 U.S. 641, 648-49 (1997).
11
See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748
(5th Cir. 1987).
3
No. 08-30221
merit, it is frivolous.12 Accordingly, we dismiss Comeaux’s appeal.13 The motion
to take judicial notice is denied as unnecessary.
The dismissal of Comeaux’s appeal counts as a strike under 28 U.S.C.
§ 1915(g).14 Comeaux is warned that once he accumulates three strikes, he may
not 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.15
MOTIONS DENIED; APPEAL DISMISSED.
12
See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).
13
See 5TH CIR. R. 42.2.
14
See Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996).
15
See 28 U.S.C. § 1915(g).
4