Wright v. Pennington ( 2006 )


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  •                                                        United States Court of Appeals
    Fifth Circuit
    F I L E D
    IN THE UNITED STATES COURT OF APPEALS          April 18, 2006
    FOR THE FIFTH CIRCUIT
    Charles R. Fulbruge III
    Clerk
    No. 05-60817
    Summary Calendar
    EUGENE TURNER WRIGHT,
    Plaintiff-Appellant,
    versus
    RICHARD PENNINGTON, Law Library Director; VALERIE SHOWERS
    BURCHFIELD, Law Library Staff; KAREN CUMMINS, Acting Law Library
    Technician,
    Defendants-Appellees.
    --------------------
    Appeal from the United States District Court
    for the Northern District of Mississippi
    USDC No. 4:04-CV-204
    --------------------
    Before SMITH, GARZA, and PRADO, Circuit Judges.
    PER CURIAM:*
    Eugene Turner Wright, Mississippi prisoner # 05578, has
    filed an application for leave to proceed in forma pauperis (IFP)
    on appeal, following the district court’s denial of Wright’s FED.
    R. CIV. P. 60(b) motion for relief from the judgment dismissing
    his 
    42 U.S.C. § 1983
     complaint for failure to state a claim.         By
    moving to proceed IFP, Wright is challenging the district court’s
    certification that IFP should not be granted on appeal because
    *
    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    that this opinion should not be published and is not precedent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. 05-60817
    -2-
    his appeal is not taken in good faith.    See Baugh v. Taylor, 
    117 F.3d 197
    , 202 (5th Cir. 1997).
    The district court determined that Wright’s complaint, which
    alleged the mishandling of Wright’s petition for a writ of
    certiorari to the United States Supreme Court, sounded in
    negligence and did not state a constitutional claim.     In his IFP
    motion to this court, as in his Rule 60(b) motion, Wright
    contends that the negligent acts of the defendants resulted in a
    denial of the right of access to the courts, as well as in the
    violation of his rights to due process and equal protection.
    Negligent conduct is not actionable under 
    42 U.S.C. § 1983
    .
    Marsh v. Jones, 
    53 F.3d 707
    , 711-12 (5th Cir. 1995).
    Wright also argues, as he did in his Rule 60(b) motion, that
    the district court erred procedurally in handling his action.
    Specifically, Wright contends that the district court should have
    provided him an opportunity to amend his complaint, that he was
    entitled to a hearing under Spears v. McCotter, 
    766 F.2d 179
     (5th
    Cir. 1985), that his complaint should not have been dismissed
    prior to service on the defendants, and that his pro se complaint
    was not given the benefit of liberal construction.     Wright’s
    arguments fail to show that the district court abused its
    discretion in denying his Rule 60(b) motion.   See Seven Elves,
    Inc. v. Eskenazi, 
    635 F.2d 396
    , 402 (5th Cir. 1981).
    Accordingly, we uphold the district court’s order certifying that
    the appeal presents no nonfrivolous issues.
    Wright’s request for IFP status is denied, and his appeal is
    dismissed as frivolous.   See Baugh, 
    117 F.3d at
    202 n.24; 5TH CIR.
    No. 05-60817
    -3-
    R. 42.2.    The dismissal of this appeal as frivolous counts as a
    strike for purposes of 
    28 U.S.C. § 1915
    (g), as does the district
    court’s dismissal of Wright’s complaint for failure to state a
    claim.    See Adepegba v. Hammons, 
    103 F.3d 383
    , 387 (5th Cir.
    1996).    Wright is hereby cautioned 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.    See 
    28 U.S.C. § 1915
    (g).
    IFP DENIED; APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING
    ISSUED.