Noble v. Cain

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 16, 2005
Charles R. Fulbruge III
Clerk
No. 04-30099
Summary Calendar
SHEDRICK NOBLE,
Plaintiff-Appellant,
versus
BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,
UNKNOWN PEABODY, Assistant Warden; CATHY ROBERTS, MARIE BOIES,
Defendants-Appellees.
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Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 03-CV-186-M3
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Before GARWOOD, JOLLY and CLEMENT, Circuit Judges.
PER CURIAM:*
Shedrick Noble, Louisiana prisoner # 83958, appeals the
district court’s dismissal of his civil rights complaint under 42
U.S.C. § 1983. Noble argues that his failure to receive a timely
notification of the Louisiana Supreme Court’s denial of his
request for a writ of certiorari cost him the opportunity to
bring a timely appeal and that, because of the defendants’
refusal to provide him with an affidavit indicating that the
notice was not received in the prison mail room, any attempt to
*
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this opinion should not be published and is not precedent except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. 04-30099
-2-
appeal at this point will be met with “great opposition,” and
requiring him to do so “would be fundamentally unfair and a
substantial injustice” under the Fourteenth Amendment.
Mere negligence on the part of a prison official does not
give rise to a due process claim. Daniels v. Williams, 474 U.S.
327, 332-36 (1986). Furthermore, to the extent that Noble is
asserting a denial-of-access-to-the-courts claim, a plaintiff
must show an actual injury. See Lewis v. Casey, 518 U.S. 343,
349-52 (1996). Although Noble argues that the defendants’
failure to provide an affidavit attesting that they had no record
of receiving the supreme court’s notice will cause him difficulty
in any attempt to appeal his claim, has not shown that he was
actually injured by this because he has not yet filed such an
appeal. See Lewis, 518 U.S. at 349-52. Accordingly, the
district court did not err in dismissing Noble’s claim under 28
U.S.C. § 1915(e)(2)(B)(ii).
Noble requests that this court compel the defendants to
provide him with the affidavit. However, the remedy sought by
Noble is in the nature of mandamus relief, which is not available
to federal courts to direct state officials in the performance of
their duties and functions. See Moye v. Clerk, DeKalb County
Superior Court, 474 F.2d 1275, 1275-76 (5th Cir. 1973); 28 U.S.C.
§ 1361.
Noble also argues that throughout his pursuit of the
affidavit, he has been met with retaliation by “this
No. 04-30099
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administration.” However, he does not address the magistrate
judge’s determination, which was adopted by the district court,
that his retaliation claim was untimely. Because Noble does not
identify any error in the district court’s dismissal of this
claim as untimely, he has abandoned it. See Hughes v. Johnson,
191 F.3d 607, 612-13 (5th Cir. 1999).
Noble’s appeal is without arguable merit and is thus
frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983). Accordingly, we DISMISS his appeal as frivolous. 5TH CIR.
R. 42.2. The district court’s dismissal of Noble’s complaint for
failure to state a claim upon which relief may be granted and
this court’s dismissal constitute two “strikes” under 28 U.S.C.
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th
Cir. 1996). Noble is WARNED that if he accumulates three
“strikes” under 28 U.S.C. § 1915(g), he will not be able to
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).
APPEAL DISMISSED; SANCTION WARNING ISSUED.