Case: 13-40763 Document: 00512641068 Page: 1 Date Filed: 05/23/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-40763 FILED
May 23, 2014
Lyle W. Cayce
NORMAN LEE BIRL, JR., Clerk
Plaintiff-Appellant
v.
NATRENIA HICKS; GREGG OLIVER,
Defendants-Appellees
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:12-CV-142
Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM: *
Norman Lee Birl, Jr., Texas inmate # 591717, seeks leave to proceed in
forma pauperis (IFP) in his appeal of the presiding judge’s 28 U.S.C. § 1915A
dismissal of his 42 U.S.C. § 1983 suit as frivolous and for failure to state a
claim for which relief may be granted. He also asks for the appointment of
counsel.
By moving to proceed IFP, Birl is challenging the judge’s certification that
the appeal is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-40763
(5th Cir. 1997); FED. R. APP. P. 24(a)(5). Our inquiry into an appellant’s good
faith “is limited to whether the appeal involves legal points arguable on their
merits (and therefore not frivolous).” Howard v. King, 707 F.2d 215, 220 (5th
Cir. 1983) (internal quotation marks and citation omitted). We may dismiss
the appeal if it is frivolous. See Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2.
We review the dismissal of Birl’s complaint de novo. See Samford v.
Dretke, 562 F.3d 674, 678, 682 (5th Cir. 2009). A complaint is frivolous if it
lacks “an arguable basis in law or fact.” Berry v. Brady, 192 F.3d 504, 507 (5th
Cir. 1999). To state a claim for relief for which relief may be granted, a
complaint must contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 562 U.S. 662, 678
(2009) (2009) (internal quotation marks and citation omitted); Hart v.
Hairston, 343 F.3d 762, 763-64 (5th Cir. 2003).
Birl argues that his suit should not have been dismissed because
Natrenia Hicks’s confiscation and subsequent destruction of his legal property
was an act of retaliation directly related to a civil action he had filed against
her friend and coworker in another proceeding. To establish a claim of
retaliation, a prisoner must show “(1) a specific constitutional right, (2) the
defendant’s intent to retaliate against the prisoner for his or her exercise of
that right, (3) a retaliatory adverse act, and (4) causation.” McDonald v.
Steward, 132 F.3d 225, 231 (5th Cir. 1998).
Birl’s argument, construed broadly, is that Hicks’s retaliatory conduct
violated his constitutionally protected right of access to the courts. See Jones
v. Greninger, 188 F.3d 322, 325-26 (5th Cir. 1999). Prisoners have a
constitutional right under the First Amendment to access the courts. Bounds
v. Smith, 430 U.S. 817, 821 (1977). Although inmates have a constitutionally-
protected right of access to the courts, to prevail on such a claim a prisoner
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No. 13-40763
must show actual injury. Lewis v. Casey, 518 U.S. 343, 349-52 (1996). Such
an injury occurs when an inmate “shows that an actionable claim . . . which he
desired to bring has been lost or rejected, or that the presentation of such a
claim is currently being prevented.” Id. at 356.
Birl does not demonstrate that any claim was lost or rejected because of
Hicks’s conduct and, therefore, fails to state a claim for which relief may be
granted. See Driggers v. Cruz, 740 F.3d 333, 337 (5th Cir 2014). Birl’s personal
belief that he was the victim of retaliation is not sufficient to support a
retaliation claim. See Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997).
Accordingly, Birl fails to show that the presiding judge erred in concluding that
his suit was frivolous and that he failed to state a claim for which relief could
be granted. See Lewis, 518 U.S. at 349-52; Driggers, 740 F.3d at 337.
Nor has Birl shown that the judge erred in certifying that his appeal was
not taken in good faith. See Baugh, 117 F.3d at 202. He has also failed to show
that his appeal involves “legal points arguable on their merits.” Howard v.
King, 707 F.2d 215, 220 (5th Cir. 1983) (internal quotation marks and citation
omitted). Accordingly, his IFP motion and his request for the appointment of
counsel are DENIED. Birl’s appeal is frivolous and is therefore DISMISSED.
See id. at 219-20; 5TH CIR. R. 42.2. The dismissal of Birl’s appeal counts as a
strike for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d
383, 387-88 (5th Cir. 1996). Birl is WARNED that if he accumulates three
strikes, he will not be able 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).
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