United States Court of Appeals
Fifth Circuit
FILED
IN THE UNITED STATES COURT OF APPEALS June 23, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-40029
Conference Calendar
LESLIE R. FOSTER,
Plaintiff-Appellant,
versus
WILLIAM DELAROSA; BRIAN K. MARSHALL;
KAREN NORMAN; RANDY MINTER,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:03-CV-483
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Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Leslie Foster, Texas prisoner # 554960, filed a 42 U.S.C.
§ 1983 civil rights complaint against several officials at his
prison facility alleging property deprivations arising from
segregation for a disciplinary infraction. The district court
dismissed Foster’s complaint with prejudice as frivolous under
28 U.S.C. § 1915A(b)(1). Foster argues on appeal that the
district court failed to conduct a Spears v. McCotter, 766 F.2d
179, 181-82 (5th Cir. 1985), hearing prior to its dismissal.
*
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this opinion should not be published and is not precedent except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. 04-40029
-2-
Because Foster cannot show his complaint to be meritorious, the
district court did not err in dismissing the complaint without
further factual development. See Denton v. Hernandez, 504 U.S.
25, 31-33 (1992); Eason v. Thaler, 14 F.3d 8, 9-10 (5th Cir.
1994).
Foster has failed to challenge the propriety of the district
court’s dismissal. Rather, he argues the merits of his 42 U.S.C.
§ 1983 complaint, specifically, that the deprivation of his
property violated his due process and various First Amendment
rights and constituted cruel and unusual punishment and that the
disciplinary proceeding was arbitrary. Foster also renews his
argument that the prison denied him access to the grievance
system by refusing to file two grievance complaints because he
had attached inappropriate or excessive attachments. Foster
cannot state a cognizable constitutional violation on this
ground. See Jackson v. Cain, 864 F.2d 1235, 1248-49 (5th Cir.
1989); Hernandez v. Estelle, 788 F.2d 1154, 1158 (5th Cir. 1986).
Because Foster has failed to address the basis of the district
court’s dismissal, he has effectively waived the only appealable
issue. See Brinkmann v. Dallas County Deputy Sheriff Abner,
813 F.2d 744, 748 (5th Cir. 1987).
Foster’s appeal is without arguable merit and is therefore
frivolous. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983).
His appeal is dismissed as frivolous. See 5TH CIR. R. 42.2.
No. 04-40029
-3-
With the dismissal of the instant appeal as frivolous,
Foster now has at least three strikes for purposes of 28 U.S.C.
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th
Cir. 1996). Foster is barred from proceeding in forma pauperis
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).
APPEAL DISMISSED AS FRIVOLOUS; 28 U.S.C. § 1915(g) SANCTIONS
IMPOSED.