Stephen Walker v. Deana Davis

Case: 12-11036 Document: 00512254647 Page: 1 Date Filed: 05/28/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 28, 2013
No. 12-11036
Summary Calendar Lyle W. Cayce
Clerk
STEPHEN C. WALKER, also known as Stephen Clayton Walker,
Plaintiff-Appellant
v.
DEANA DAVIS,
Defendant-Appellee
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:12-CV-46
Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
Stephen C. Walker, Texas prisoner # 1417300, appeals the dismissal of his
civil rights complaint against Deana Davis. He alleged that Davis violated his
rights to free speech and procedural due process by denying his outgoing
indigent mail on two occasions and failing to provide him notice of those denials.
Each of Walker’s attempted mailings consisted of a letter and proposed motion
to a friend to assist the friend in prosecuting a state tort suit. The district court
sua sponte dismissed the complaint as frivolous pursuant to 28 U.S.C.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-11036 Document: 00512254647 Page: 2 Date Filed: 05/28/2013
No. 12-11036
§ 1915(e)(2), 28 U.S.C. § 1915A(b)(1), and 42 U.S.C. § 1997e(c)(1), and the
district court denied Walker’s ensuing motion for relief from the judgment under
Federal Rule of Civil Procedure 59(e).
Walker contends that his use of indigent postage to send the mailings was
protected by the First Amendment and a liberty interest created by the Texas
Department of Criminal Justice (TDCJ) regulation governing inmate mail.
Walker does not have a freestanding constitutional right to free postage, and his
attempted mailings did not implicate a constitutionally protected liberty
interest. See Sandin v. Conner, 515 U.S. 472, 483-84 (1995); Lee v. Perry,
No. 93-4291, 1993 WL 185752, at *1 (5th Cir. May 19, 1993) (unpublished).
Regarding his procedural due process claim, Walker argues that he never
received official notice of the denial of his mailings and was thus deprived of the
opportunity to appeal those denials to the body designated by TDCJ policy to
hear such appeals. Walker, though, was permitted to use the grievance process
to challenge the denial of his mailings. His complaint failed to allege any
constitutionally cognizable harm. See McFaul v. Valenzuela, 684 F.3d 564, 579
(5th Cir. 2012); Samford v. Dretke, 562 F.3d 674, 681 (5th Cir. 2009).
The instant appeal presents no legal points arguable on their merits and
is dismissed as frivolous. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983);
5TH CIR. R. 42.2. The district court’s dismissal of Walker’s complaint and our
dismissal of this appeal as frivolous count as two strikes for purposes of
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996). Walker
is cautioned that if he accumulates three strikes under § 1915(g), he will not be
able to proceed in forma pauperis 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 § 1915(g).
APPEAL DISMISSED; SANCTION WARNING ISSUED.
2