IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-60666
Summary Calendar
VICTOR HURNS,
Plaintiff-Appellant,
versus
JAMES V. ANDERSON, SUPERINTENDENT,
MISSISSIPPI STATE PENITENTIARY;
WALTER BOOKER; ROBERT ARMSTRONG;
GENE CROCKETT; BOBBY BUTLER;
ANN L. LEE; EARL JACKSON,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 4:98-CV-106-B-D
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November 12, 1999
Before POLITZ, WIENER, and DENNIS, Circuit Judges.
PER CURIAM:*
Victor Hurns, Mississippi prisoner # 09848, has filed an
application for leave to proceed in forma pauperis (IFP) on
appeal, following the district court’s dismissal of his 42 U.S.C.
§ 1983 complaint. By moving for IFP, Hurns is challenging the
district court’s certification that IFP should not be granted on
appeal because his appeal presents no nonfrivolous issues. See
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
*
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that this opinion should not be published and is not precedent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. 98-60666
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Hurns has not adequately briefed the substance of the
majority of his alleged constitutional violations. In his motion
to proceed IFP filed on November 24, 1998, Hurns attempts to show
that his claims are not frivolous by adopting his objections to
the magistrate judge’s report. This court does not consider
incorporation of arguments contained in other pleadings. Issues
must be argued in the body of the brief. Yohey v. Collins, 985
F.2d 222, 225 (5th Cir. 1993).
In his supplement to his motion for IFP filed on August 3,
1999, Hurns provides a minimally adequate briefing of his claim
that he was denied a fair and impartial review during his
classification proceedings after having been held in segregation
for more than one year. He cites this court’s unpublished
opinion in Phillips v. Puckett, No. 98-60010 (5th Cir. Mar. 15,
1999). Hurns argues that in light of Phillips, it is plain that
the district court erred in its decision that his claim was
frivolous and that his appeal would not be frivolous.
Hurns’ case is distinguishable from Phillips. Hurns has not
alleged and has not provided any evidence that the administration
dictated to and imposed its will upon the classification
committee, thus mandating the result that he would be maintained
in his current status. There is nothing in the classification
committee’s reasons to suggest that they based their decision on
anything more than a recommendation, not a mandate, by the
administration. Hurns was not placed in administrative
segregation based on the money-order scam like Phillips. He was
placed in his current status based on an assault by members of
No. 98-60666
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the Black Gangster Disciples, of which Hurns was identified as a
leader. Even if Hurns did have a liberty interest in impartial
periodic review, he has not alleged facts to show that his right
to such was violated. His claim has no arguable basis in fact,
and the district court did not abuse its discretion in dismissing
his action as frivolous, nor did it err in denying IFP. Siglar,
112 F.3d at 193.
Accordingly, we uphold the district court’s order certifying
that the appeal presents no nonfrivolous issues. Hurns’ request
for IFP status is DENIED, and his appeal is DISMISSED as
frivolous. See Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2.
Hurns’ has two strikes for purposes of 28 U.S.C. § 1915(g).
See Hurns v. Parker, No. 98-60006 (5th Cir. Dec. 2, 1998). The
district court and this court dismissed that action and appeal as
frivolous. See Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir.
1996) (“[D]ismissals as frivolous in the district courts or the
court of appeals count [as strikes] for the purposes of
[§ 1915(g)].”). The dismissal of this appeal as frivolous counts
as Hurns’ fourth strike under § 1915(g). We inform Hurns that
having accumulated three strikes, he may not 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 AS FRIVOLOUS.
Hurns v. Anderson
Combined Opinion