Charles v. Nance

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 21, 2006
Charles R. Fulbruge III
Clerk
No. 05-51136
Conference Calendar
SHIRLEY ANN CHARLES,
Plaintiff-Appellant,
versus
SYLVIA NANCE, Warden; LINDA MAYBERRY; LAWRENCE SIGGERS;
AUDREY LYNN SMITH; KAY SHEELEY,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:05-CV-139
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Before STEWART, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Shirley Ann Charles, Texas prisoner # 692618, appeals the
district court’s dismissal of her 42 U.S.C. § 1983 complaint as
frivolous and for failure to state a claim pursuant to 42 U.S.C.
§ 1997e(e) and 28 U.S.C. § 1915(e). We review a dismissal as
frivolous for abuse of discretion and for failure to state a
claim de novo. See Berry v. Brady, 192 F.3d 504, 507 (5th Cir.
1999); Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998).
As the district court correctly determined, a prisoner may
*
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this opinion should not be published and is not precedent except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. 05-51136
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not maintain an action for monetary damages against state
officials based on an alleged constitutional violation absent
some showing of a physical injury. § 1997e(e); see also Geiger
v. Jowers, 404 F.3d 371, 374 (5th Cir. 2005). Moreover,
prisoners have no absolute constitutional right of visitation.
See Berry, 192 F.3d at 508. The denial of a single visit does
not give rise to a constitutional violation. See id. The
alleged violation of the prison’s visitation policy likewise
provides no basis for a constitutional claim. See Edwards v.
Johnson, 209 F.3d 772, 779 (5th Cir. 2000). Charles’s complaint
that the prison failed to investigate her grievance arising out
of the denial of visitation likewise fails to assert a due
process violation. See Geiger, 404 F.3d at 373-74. Thus, we
need not reach the district court’s conclusion that Charles
failed to exhaust administrative remedies with respect to this
claim.
Charles’s argument that the district court should have
allowed her to amend her complaint is without merit. In light of
the foregoing, there are no facts alleged by Charles in seeking
leave to amend or that could have been alleged that would have
entitled her to relief. See Jacquez v. Procunier, 801 F.2d 789,
793 (5th Cir. 1986).
For the foregoing reasons, we dismiss this appeal as
frivolous. See 5TH CIR. R. 42.2; Howard v. King, 707 F.2d 215,
219-20 (5th Cir. 1983). The dismissal by the district court of
No. 05-51136
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Charles’s suit and the dismissal of this appeal as frivolous
count as two strikes under 28 U.S.C. § 1915(g). See Adepegba v.
Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Charles
previously received a strike when another § 1983 suit was
dismissed for failure to state a claim. See Charles v. Woody,
No. 05-50665, 2006 WL 1342811, at *2 (5th Cir. May 17, 2006)
(unpublished). As Charles now has accumulated at least three
strikes under § 1915(g), she is barred from proceeding in forma
pauperis in any civil action or appeal filed while she is
incarcerated or detained in any facility unless she is under
imminent danger of serious physical injury. § 1915(g).
DISMISSED AS FRIVOLOUS; 28 U.S.C. § 1915(g) BAR IMPOSED.