IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-60622
Summary Calendar
DAVID GRAY,
Plaintiff-Appellant,
versus
JAMES V. ANDERSON, Commissioner - MDOC;
E. L. SPARKMAN, Warden - MCCF; JUSTIN HALL,
Director for Private Prisons - MDOC & MCCF;
ANN LEE, Director of Offender Services - MDOC;
WACKENHUT CORRECTION CORPORATION; LEASA AGNUE;
DREDRIA PHILLIPS; VANDIVER,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 3:00-CV-9-P
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February 10, 2003
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
David Gray, a Mississippi prisoner (# 01440), seeks leave
to proceed in forma pauperis (“IFP”) on appeal following the
district court’s dismissal of his 42 U.S.C. § 1983 complaint for
failure to state a claim upon which relief can be granted, under
28 U.S.C. § 1915(e)(2)(B)(ii). By moving for IFP, Gray is
*
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that this opinion should not be published and is not precedent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. 02-60622
-2-
challenging the district court’s certification that he should not
be granted IFP status because his appeal is not taken in good
faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997);
28 U.S.C. § 1915(a)(3); FED. R. APP. P. 24(a).
Gray has effectively abandoned any claims that defendants
Anderson, Sparkman, Hall, Lee, and the Wackenhut Correction
Corporation violated his rights by refusing to transfer him back
to a prison much closer to his aging and ailing parents. See
Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
Gray continues to argue that defendants Vandiver, Agnew**,
and Phillips violated his due process rights by causing the
confiscation of many of his personal items upon his arrival at
the Marshall County Correctional Facility (“MCCF”) in May 1999
and the destruction or loss of that property in October 1999.
Although it is not disputed that this confiscation and
destruction was undertaken pursuant to prison policy, rather
than because of the “random” and “unauthorized” acts of the
defendants, Gray has not demonstrated that either the policy or
the defendants’ actions violated the Due Process Clause. See
Logan v. Zimmerman Brush Co., 455 U.S. 422, 435-36 (1982);
Alexander v. Ieyoub, 62 F.3d 709, 712-13; cf. Parratt v. Taylor,
451 U.S. 527, 541-44 (1981). Gray suggests that the destruction
of his property violated his constitutional rights only because,
**
Lesha Agnew’s name is misspelled as “Leasa Agnue” in the
official caption.
No. 02-60622
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for an inmate like Gray who is serving a life sentence, prison is
his “home” and because he had litigation regarding the property
pending at the time it was destroyed.
Gray has failed to show that the claims that were dismissed
present nonfrivolous issues for appeal. Accordingly, we uphold
the district court’s order certifying that the appeal is not
taken in good faith. Gray’s 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. The dismissal of this appeal as
frivolous and the district court’s dismissal of the complaint as
frivolous and for failure to state a claim both count as strikes
for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons,
103 F.3d 383, 388 (5th Cir. 1996). In Gray v. Turner,
No. 00-60353 (5th Cir. Nov. 2, 2000) (unpublished), this court
affirmed the district court’s dismissal as frivolous of another
civil rights complaint by Gray, which counted as a prior strike.
Id. at 387. He has now accumulated three strikes. Accordingly,
Gray 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).
Gray’s motion for appointment of counsel is DENIED.
IFP DENIED; APPEAL DISMISSED AS FRIVOLOUS; THREE-STRIKES BAR
IMPOSED; MOTION FOR APPOINTMENT OF COUNSEL DENIED.