U.S. Court of Appeals for the Fifth Circuit, 2004

Pickens v. Minton

Pickens v. Minton
U.S. Court of Appeals for the Fifth Circuit · Decided August 18, 2004 · Higginbotham, Davis, Pickering
109 F. App'x 655

Pickens v. Minton

Opinion

PER CURIAM: *

Roekie D. Pickens, Mississippi state prisoner #71454, proceeding pro se, has filed an application for leave to proceed in forma pauperis (IFP) to appeal the denial of his 42 U.S.C. § 1983 complaint, in which he alleged that he is entitled to damages because he was denied due process during an administrative grievance proceeding. By moving for IFP, Pickens is challenging the district court’s certification that IFP status should not be granted on appeal because his appeal is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).

The district court failed to comply with Baugh since it neither provided reasons for certifying that Pickens’s appeal was not taken in good faith, nor incorporated its decision on the merits of Pick-ens’s complaint. See Baugh, 117 F.3d at 202; Fed. R.App. P. 24(a)(3). Nevertheless, we may dismiss the case sua sponte pursuant to 5th Cir. R. 42.2 if it is apparent that the appeal lacks merit. See Baugh, 117 F.3d at 202 & n. 24.

Pickens’s assertion of a due process violation is without merit. His placement in isolation for 20 days did not deprive him of any liberty interest protected by due process because the punishment imposed did not constitute an “atypical and significant hardship on [him] in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484, 486, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). Similarly, Pickens has no due process claim arising out of his reduced custody classification because a prison inmate does not have a protectable liberty interest in his custodial classification. See Neals v. Norwood, 59 F.3d 530, 533 (5th Cir. 1995).

Pickens’s appeal is without arguable merit and is frivolous. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly, we uphold the district court’s order certifying that the appeal is not taken in good faith and denying Pickens IFP status on appeal, we deny the motion for leave to proceed IFP, and we dismiss Pick-ens’s appeal as frivolous. See Baugh, 117 F.3d at 202 n. 24; 5th Cir. R. 42.2. Pick-ens’s motion for the appointment of appellate counsel is denied as moot.

*657 The district court’s dismissal of Pick-ens’s action and our dismissal of his appeal as frivolous count as two strikes for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). We caution Pickens that should he accumulate three strikes, he will be unable 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).

IFP DENIED; APPEAL DISMISSED; SANCTIONS WARNING ISSUED.

*

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-law data current through December 31, 2025. Source: CourtListener bulk data.