IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-60715
Conference Calendar
RONALD J. FERGUSON,
Plaintiff-Appellant,
versus
MISSISSIPPI DEPARTMENT OF CORRECTIONS;
LAKE O. LINDSEY,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:96-CV-131
--------------------
August 26, 1999
Before KING, Chief Judge, and JOLLY and DAVIS, Circuit Judges.
PER CURIAM:*
Ronald Jason Ferguson, Mississippi inmate # 82238,
proceeding pro se and in forma pauperis (IFP), appeals the
magistrate judge’s dismissal as frivolous of his civil rights
complaint against the Mississippi Department of Corrections
(“MDOC”) and Lake O. Lindsey, Superintendent of the Central
Mississippi Correctional Facility. Ferguson contends that he was
denied due process during disciplinary proceedings conducted on
an escape charge. He asserts also that the magistrate judge
*
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that this opinion should not be published and is not precedent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. 96-60715
-2-
erred by denying his motions for leave to amend his complaint and
for production of a transcript at government expense.
Ferguson challenged in the district court the conditions of
his confinement and alleged that officers destroyed his “personal
effects” and “legal items.” Ferguson does not reiterate these
claims in this court. Accordingly, he has abandoned them. See
Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744,
748 (5th Cir. 1987) (issues must be raised to be preserved).
Ferguson’s claim that he was denied due process during the
disciplinary hearing would necessarily imply the invalidity of
his “conviction” in the disciplinary proceeding, and because
Ferguson has not had his “conviction” reversed, expunged, or
otherwise declared invalid, his claim of a denial of due process
at the disciplinary proceeding is not yet cognizable in a 42
U.S.C. § 1983 action. See Edwards v. Balisok, 520 U.S. 641, 648-
49 (1997); Heck v. Humphrey, 512 U.S. 477, 486-87 (1994); Clarke
v. Stalder, 154 F.3d 186, 189 (5th Cir. 1998)(en banc), cert.
denied, 119 S. Ct. 1052 (1999). Ferguson has no constitutional
right protecting him against a change in custody classification.
See Moody v. Baker, 857 F.2d 256, 257-58 (5th Cir. 1988).
The magistrate judge’s decision dismissing Ferguson’s § 1983
complaint is AFFIRMED. See Bickford v. Int’l Speedway, 654 F.2d
1028, 131 (5th Cir. 1981) (judgment may be affirmed on alternate
grounds).
Ferguson now “has, on 3 or more prior occasions, while
incarcerated or detained in any facility, brought an action or
appeal in a court of the United States that was dismissed on the
No. 96-60715
-3-
grounds that it is frivolous, malicious, or fails to state a
claim upon which relief may be granted.” 28 U.S.C. § 1915(g);
see Ferguson v. Mississippi, No. 3:95-CV-303WS (S.D. Miss. Mar.
15, 1996)(dismissed as frivolous; appeal waived; strike one);
Ferguson v. Starrett, No. 3:96-CV-190LN (S.D. Miss. June 14,
1996)(dismissal for failure to state a claim); Ferguson v.
Starrett, No. 96-60451 (5th Cir. Oct. 24, 1996)(affirmance;
strike two); see Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th
Cir. 1996)(dismissal as frivolous by district court counts as a
strike once prisoner has exhausted or waived his appeals;
affirmance of district court’s dismissal as frivolous counts as a
single strike). The instant case is Ferguson’s third strike.
Accordingly, Ferguson is barred from proceeding IFP in a civil
action or appeal unless he is under imminent danger of serious
physical injury. See § 1915(g).
AFFIRMED; SANCTION IMPOSED.