IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-40921 Conference Calendar

MICHAEL HENRY SMITH,

Plaintiff-Appellant,

versus

KARLA W. CORCORAN, The Inspector General of the United States Postal Service; THOMAS, The Postal Inspector in Houston, Texas; POSTMASTER GENERAL JOHN E. POTTER, Station Master of the Beaumont Post Office For the 77700 Zip Codes; POSTAL CLERK, Who Issued Article Numbers 7000 0520 0016 5082 7540 & 7557,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:00-CV-546 -------------------- February 19, 2003 Before WIENER, EMILIO M. GARZA, and CLEMENT, Circuit Judges.

PER CURIAM:*

Michael Henry Smith, federal prisoner # 04325-003, appeals

the dismissal of his Bivens** complaint for failure to state a

claim. Smith argues that the district court misconstrued his

complaint; he asserts that his claims are based on the refusal of

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. ** Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,

(1971). No. 02-40921 -2-

postal officials to investigate mail tampering because he is a

prisoner, which he argues is an “unconstitutional motive.”

Liberally construed, Smith is attempting to raise an equal

protection claim. See Haines v. Kerner,

(1972). To establish an equal protection claim, a plaintiff

“must allege and prove that he received treatment different from

that received by similarly situated individuals and that the

unequal treatment stemmed from a discriminatory intent.” See

Taylor v. Johnson,

(5th Cir. 2001).

Smith does not allege he was treated differently than other

“similarly situated” individuals. He claims that postal

officials refused to investigate because he is a prisoner;

however, non-prisoners and prisoners are not “similarly

situated.” See Cunningham v. Beavers,

(5th

Cir. 1988) (equal protection “does not require classes of people

different in fact or opinion to be treated in law as though they

were the same”). His appeal is without merit and is DISMISSED.

The district court’s dismissal and the dismissal of this

appeal each count as a strike for purposes of

(g). See Adepegba v. Hammons,

(5th Cir.

1996). Smith is warned that if he accumulates three strikes, he

may not proceed IFP in any civil action or appeal while he is

incarcerated or detained in any facility unless he is in imminent

danger of serious physical injury. See

(g).

APPEAL DISMISSED; THREE-STRIKES WARNING ISSUED.