Case: 12-11270 Document: 00512435664 Page: 1 Date Filed: 11/08/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 8, 2013
No. 12-11270
Summary Calendar Lyle W. Cayce
Clerk
MARCUS DWAYNE MAYBERRY,
Plaintiff-Appellant
v.
LARRY ANDERSON, Law Library Supervisor; GARY JOHNSON, Director of
Texas Department of Criminal Justice in 1998; FRANK HOKE, Access to Court
Supervisor; V. BARROW, Assistant Program Manager for Access to Court,
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:12-CV-152
Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM:*
Marcus Dwayne Mayberry, Texas prisoner # 605575, moves to proceed in
forma pauperis (IFP) to appeal the magistrate judge’s (MJ) dismissal with
prejudice as frivolous of his 42 U.S.C. § 1983 suit. Mayberry consented to
proceed before a MJ. By moving to proceed IFP, Mayberry is challenging the
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 12-11270
certification by the MJ that the appeal is not taken in good faith. See Baugh v.
Taylor, 117 F.3d 197, 202 (5th Cir. 1997); FED. R. APP. P. 24(a)(5).
On appeal, Mayberry contends that he was denied access to courts because
the libraries at the Robertson and Montford Units of the Texas Department of
Criminal Justice were inadequate in the following respects. First, he alleges
that the Robertson Unit’s library did not receive a copy of the Antiterrorism and
Effective Death Penalty Act (AEDPA) until March 1997 and that the delay in its
receipt of the AEDPA caused his federal habeas petition, filed in March 1997, to
be dismissed as time barred. Although his federal habeas petition was dismissed
in March 1998, he argues that the statute of limitations for this § 1983 claim
began to run in August 2010 when he allegedly discovered the proof necessary
to substantiate his claim. The MJ did not abuse his discretion in finding that
this denial of access to courts claim was frivolous as it was barred by the
applicable statute of limitations. See Berry v. Brady, 192 F.3d 504, 507 (5th Cir.
1999); Gartrell v. Gaylor, 981 F.2d 254, 256-57 (5th Cir. 1993).
Mayberry also argues that he was denied access to courts because the
Montford Unit’s library did not have a copy of a particular unpublished opinion
from this court. The unpublished opinion was cited by a different MJ in a report
recommending the dismissal of Mayberry’s Federal Rule of Civil Procedure 60(b)
motion as time barred pursuant to Rule 60(c). Mayberry asserts that, without
access to that unpublished opinion, he was unable to file objections to the MJ’s
report and recommendation. Mayberry does not contend, however, that he was
denied access to Rule 60(c) or published case law applying Rule 60(c), and Rule
60(c) clearly provides the time limitations for filing a postjudgment motion
pursuant to Rule 60(b). To establish a denial of access to courts claim, Mayberry
must show that an alleged shortcoming in the prison library hindered his efforts
to pursue a legal claim and “the legal claim affected must be one that either
directly or collaterally attacks plaintiff’s conviction or sentence, or one that
challenges the conditions of his confinement.” See Lewis v. Casey, 518 U.S. 343,
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351, 354-55 (1996). As Mayberry did not make such a showing, the MJ also did
not abuse his discretion in dismissing Mayberry’s denial of access to courts claim
relating to the Montford Unit.
Finally, Mayberry’s conclusory allegation that V. Barrow fraudulently
tried to cover up the fact that the Montford Unit’s library did not have a copy of
the unpublished opinion is insufficient to establish a constitutional violation.
See Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990). In addition, because for
the reasons noted above, we conclude that the MJ did not abuse his discretion
in dismissing Mayberry’s claims, we need not address his arguments that Gary
Johnson and Frank Hoke were personally involved in the alleged constitutional
violations. Nor do we address Mayberry’s claims pursuant to Brady v.
Maryland, 373 U.S. 83 (1963), as those claims were not properly raised before
the MJ. See Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999).
To the extent that Mayberry challenges the 1998 dismissal of his federal habeas
petition and the 2011 dismissal of the aforementioned Rule 60(b) motion, those
rulings are not before us in this appeal.
We deny Mayberry’s motion to proceed IFP on appeal and dismiss his
appeal as frivolous. See Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2. The
dismissal of Mayberry’s § 1983 action as frivolous and the 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, 388 (5th Cir. 1996). Mayberry is cautioned
that if he accumulates three strikes under § 1915(g), he will not be allowed 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 § 1915(g). Mayberry’s motions for relief from judgment and to
expand the record are also denied.
MOTIONS DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.
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