IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40956
Conference Calendar
MARK ANDREW LEWIS,
Plaintiff-Appellant,
versus
DOUGLAS DRETKE; THOMAS J. PRASIFKA;
RICKY A. DOSS; LARRY HALE; STEVE SANGTER;
LANA K. PODSIM; SUSAN L. YOUNG; PETE PUENTE;
DEBORAH VILLARREAL; JANIE COCKRELL,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. V-99-CV-33
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December 11, 2002
Before JOLLY, DAVIS, and JONES, Circuit Judges.
PER CURIAM:*
Mark Andrew Lewis, Texas prisoner # 694240, seeks leave to
proceed in forma pauperis (IFP) following the district court’s
certification pursuant to 28 U.S.C. § 1915(a)(3) and FED. R. APP.
P. 24(a)(3) that his appeal was not taken in good faith. Lewis
commenced this civil rights action alleging that he had been
denied due process in prison disciplinary proceedings which he
*
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that this opinion should not be published and is not precedent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. 02-40956
-2-
contended were based on false charges. As a result of these
proceedings, Lewis received 30 days’ cell and commissary
restriction (including loss of recreation and library privileges,
as well as the ability to attend religious services), 90 days
loss of telephone privileges, 15 days of solitary confinement, a
reduction from trustee class 4 to line class 1, and an increase
of his custody level from minimum to medium. He also asserted
that a correctional officer used abusive language against him.
The district court dismissed the complaint as frivolous. Lewis
argues that he stated a claim for retaliation and that he has a
right of access to the courts.
A prisoner’s protected liberty interest is “generally
limited to freedom from restraint which, while not exceeding the
sentence in such an unexpected manner as to give rise to
protection by the Due Process Clause of its own force,
nonetheless imposes atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life.”
Sandin v. Conner, 515 U.S. 472, 484 (1995) (citations omitted).
The punishment Lewis received from this disciplinary proceeding
does not implicate a protected liberty interest. See Malchi v.
Thaler, 211 F.3d 953, 958 (5th Cir. 2000); Luken v. Scott, 71
F.3d 192, 193 (5th Cir. 1995); Neals v. Norwood, 59 F.3d 530, 533
(5th Cir. 1995). A correctional officer’s use of offensive
language also fails to rise to the level of a constitutional
violation. See Robertson v. Plano City of Texas, 70 F.3d 21, 24
No. 02-40956
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(5th Cir. 1995). To the extent that Lewis asserts that denial of
his IFP motion would deny his right of access to the courts,
there is no constitutional right to bring a frivolous action.
See Day v. Allstate Ins. Co., 788 F.2d 1110, 1114 (5th Cir.
1986).
Lewis’s appeal is without arguable merit and is frivolous.
See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983); 5TH CIR.
R. 42.2. Therefore, his motion for leave to proceed IFP is
DENIED, and the appeal is DISMISSED.
The district court’s dismissal of Lewis’s action and our
dismissal of his appeal count as two strikes for purposes of
28 U.S.C. § 1915(g). Lewis is warned that should he accumulate
three strikes for purposes of 28 U.S.C. § 1915(g) he will be
unable to proceed IFP in any civil action or appeal unless he is
under imminent danger of serious physical injury.
IFP DENIED; APPEAL DISMISSED; SANCTIONS WARNING ISSUED.
Lewis v. Cockrell
Combined Opinion