Petty v. Kelly

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 24, 2003
Charles R. Fulbruge III
Clerk
No. 02-41231
Conference Calendar
ADOLPHUS PETTY,
Plaintiff-Appellant,
versus
DIANE KELLY; LARRY PARENT; ANTHONY M. HOLMES;
MARTHA JONES; ELIZABETH MILLER,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:02-CV-171
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Before DeMOSS, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Adolphus Petty, Texas prisoner #781307, appeals from the
dismissal of his 42 U.S.C. § 1983 complaint for failure to
state a claim and as frivolous. Petty moves for a temporary
restraining order and injunctive relief; his motions are DENIED.
Petty contends that his right of access to the courts was
violated because he was not provided with the forms he requested,
in violation of prison policy; because gay sex that is tolerated
*
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that this opinion should not be published and is not precedent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. 02-41231
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in the law library interferes with his ability to conduct legal
research; because prison system staff attorneys are restricted
in the matters they may pursue; and because he was not able to
correspond with prisoner James Campbell after he was transferred
to the Michael Unit. Petty did not raise his contentions
regarding gay sex and prison staff attorneys in the district
court. He may not raise his new claims for the first time on
appeal. See Leverette v. Louisville Ladder Co., 183 F.3d 339,
342 (5th Cir. 1999).
Regarding Petty’s remaining access-to-courts contention,
he has not shown any actual injury arising from the defendants’
actions. He was able to file the complaint in district court
that he sought to file. See Lewis v. Casey, 518 U.S. 343, 349
(1996); Brewer v. Wilkinson, 3 F.3d 816, 821 (5th Cir. 1993).
Moreover, any violation of prison rules and regulations did not
give rise to any constitutional violation. Myers v. Klevenhagen,
97 F.3d 91, 94 (5th Cir. 1996).
Petty contends that the prison system should not punish
or penalize him, or retaliate against him, for seeking relief
through the prison grievance system. He alleges that he was
denied legal visits with other offenders as retaliation, but
he does not name any prisoners he wanted to visit. Rather, he
refers to the district court record to support his contention.
He cannot incorporate the district court record by reference.
See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
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Petty does not allege facts in his appellate brief relevant
to any retaliation claim. He has failed to brief retaliation
for appeal. See Brinkmann v. Dallas County Deputy Sheriff Abner,
813 F.2d 744, 748 (5th Cir. 1987).
Petty contends that he was deprived of his right against
arbitrary censorship due to the interference with his mother’s
mail and other missing legal mail. Petty has failed to show
that his position as a litigant was prejudiced by the alleged
mail-tampering. He does not show that he could have prevailed
in his previous lawsuit had nobody tampered with his mail. See
Walker v. Navarro County Jail, 4 F.3d 410, 413 (5th Cir. 1993).
The district court did not err by dismissing Petty’s
complaint for failure to state a claim and as frivolous.
See Black v. Warren, 134 F.3d 732, 734 (5th Cir. 1998);
Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997).
Petty’s appeal is without arguable merit and is frivolous.
See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983);
5TH CIR. R. 42.2. The district court’s dismissal of Petty’s
action and this court’s dismissal of his appeal each count as
a “strike” against Petty for purposes of 28 U.S.C. § 1915(g).
Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).
The district court also dismissed one of Petty’s previous
complaints as frivolous. Petty v. Dominguez, No. 2:01-CV-00368
(N.D. Tex. May 22, 2002). Petty thus has three “strikes” and is
warned that he may not proceed in forma pauperis (IFP) in any
No. 02-41231
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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).
APPEAL DISMISSED. 5TH CIR. R. 42.2. 28 U.S.C. § 1915(g)
SANCTION IMPOSED.