Roth v. Johnson
Roth v. Johnson
Opinion
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 01-60527 Conference Calendar
JAMES ALLEN ROTH,
Plaintiff-Appellant,
versus
ROBERT JOHNSON, Commissioner; JAMES V. ANDERSON; WALTER BOOKER; BOBBY BUTLER; ANN LEE, Director of Offender Services; LAWRENCE HENDERSON; JIMMY PARKER; GENE CROCKER, Chief of Security; ROBERT ARMSTRONG,
Defendants-Appellees.
-------------------- Appeal from the United States District Court for the Northern District of Mississippi USDC No. 4:00-CV-294-D-A -------------------- December 12, 2001 Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
James Allen Roth, Mississippi inmate #76800, appeals the
district court’s dismissal of his pro se, in forma pauperis
(“IFP”),
42 U.S.C. § 1983complaint for failure to state a claim
upon which relief may be granted. Roth contends that he has been
confined in administrative segregation for more than three years
without due process and despite the fact that he has not received
disciplinary action. Roth contends that his confinement is a
* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-60527 -2-
violation of his right to due process and his right against cruel
and unusual punishment.
We review de novo the district court’s dismissal of an
inmate’s IFP,
42 U.S.C. § 1983complaint for failure to state a
claim upon which relief may be granted. Black v. Warren,
134 F.3d 732, 734(5th Cir. 1998);
28 U.S.C. § 1915(e)(2)(B)(ii).
An inmate does not have a protectible property or liberty
interest in his custody classification. Moody v. Baker,
857 F.2d 256, 257-58(5th Cir. 1988). Administrative segregation is an
incident to ordinary prison life and, absent extraordinary
circumstances, is not a ground for a constitutional claim.
Pichardo v. Kinker,
73 F.3d 612, 612(5th Cir. 1996). The loss
of the opportunity to earn good time credits does not implicate a
constitutionally protected liberty interest. See Luken v. Scott,
71 F.3d 192, 193(5th Cir. 1995).
Roth has not shown that his extended confinement in
administrative segregation amounts to a constitutional violation.
See Sandin v. Conner,
515 U.S. 472, 483-86(1995). The record
refutes Roth’s contentions regarding the reasons for his
confinement to administrative segregation and demonstrates that
Roth is receiving periodic reviews of his custodial
classification. Roth has not demonstrated the violation of a
constitutional right. See Allison v. Kyle,
66 F.3d 71, 73(5th
Cir. 1995). Roth’s contention that the district court’s February
14, 2001, order required the defendants to respond to his
complaint and that the district court erred by denying his
motions for default judgments are without merit. No. 01-60527 -3-
Roth’s appeal is without arguable merit and is dismissed as
frivolous. See 5th Cir. R. 42.2; Howard v. King,
707 F.2d 215, 219-20(5th Cir. 1983). The dismissal of the appeal as frivolous
and the district court’s dismissal of Roth’s
42 U.S.C. § 1983complaint for failure to state a claim count as “strikes” under
the three-strikes provision of
28 U.S.C. § 1915(g). See Adepegba
v. Hammons,
103 F.3d 383, 387-88(5th Cir. 1996);
28 U.S.C. § 1915(e)(2)(B)(ii). Roth is CAUTIONED that if he accumulates a
third “strike” 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; THREE-STRIKES WARNING ISSUED.
Reference
- Status
- Unpublished