IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-30031
Summary Calendar
HORACE TOPPINS, JR.,
Plaintiff-Appellant,
versus
ROBERT A. NEWSOM, Captain; JOHN P.
WHITLEY, Warden; RICHARD L. STALDER,
Secretary of Department of Corrections;
DORA RABALAIS, Legal Programs Director;
M. L. MCCOY, Classification officer;
GARY FRANKS, Assistant Warden,
Defendants-Appellees.
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Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 94-CV-872-B-M1
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September 11, 1996
Before HIGGINBOTHAM, WIENER and BENAVIDES, Circuit Judges.
PER CURIAM:*
A movant for in forma pauperis (IFP) status on appeal must
show that he is a pauper and that he will present a nonfrivolous
issue on appeal. Carson v. Polley, 689 F.2d 562, 586 (5th Cir.
*
Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule
47.5.4.
No. 96-30031
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1982). In the absence of a nonfrivolous issue, the appeal will
be dismissed. 5th Cir. 42.2.
Horace Toppins, Jr., No. 119405, a Louisiana state prisoner,
contends that the district court erred by not allowing him to
amend his 42 U.S.C. § 1983 complaint to add his claim of
retaliation for filing suit against the defendants. Because
Toppins’ allegations do not rise to the level of a cognizable
claim, see Whittington v. Lynaugh, 842 F.2d 818, 819 (5th Cir.),
cert. denied, 488 U.S. 840 (1988), the district court did not err
by not allowing Toppins to amend his complaint. See Chemetron
Corp. v. Business Funds, Inc., 682 F.2d 1149, 1193-94 (5th Cir.
1982), vacated on other grounds, 460 U.S. 1007 (1983) (futility
of amendment one reason to deny leave to amend).
Toppins also contends that the district court erred by
granting summary judgment for the defendants regarding his claims
of violations of his rights to due process and to be free of
cruel and unusual punishment. Because Toppins’ allegations do
not rise to the level of a constitutional violation, see Sandin
v. Conner, 115 S. Ct. 2293, 2295 (1995) (due process); see
Jackson v. Culbertson, 984 F.2d 699, 700 (5th Cir. 1993) (cruel
and unusual punishment), the district court did not err in
granting summary judgment for the defendants. See Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986).
Toppins does not present a nonfrivolous issue for appeal.
See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). His
No. 96-30031
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motion for IFP is DENIED and the APPEAL DISMISSED as frivolous.
See 5th Cir. R. 42.2.