United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 12, 2004
Charles R. Fulbruge III
Clerk
No. 03-31122
JOHN DONALDSON
Plaintiff - Appellant
v.
RICHARD DUCOTE
Defendant - Appellee
Appeal from the United States District Court
for the Middle District of Louisiana, Baton Rouge
No. 03-CV-445-C
Before KING, Chief Judge, and DeMOSS and STEWART, Circuit Judges.
PER CURIAM:*
John Donaldson, Louisiana prisoner # 92968, has moved this
court for leave to proceed in forma pauperis (IFP) on appeal from
the district court’s dismissal of his 42 U.S.C. § 1983 suit with
prejudice as frivolous and for failure to state a claim under 28
U.S.C. § 1915(e)(2)(B). In denying Donaldson’s motion to proceed
IFP on appeal, the district court certified that the appeal was
not taken in good faith. For the reasons given below, we hold
that Donaldson’s appeal is frivolous and therefore dismiss it
*
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that this opinion should not be published and is not precedent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.
under 5TH CIR. R. 42.2.
I. Background
Donaldson is an inmate at the Louisiana State Penitentiary.
On February 12, 2003 Donaldson was the subject of a disciplinary
proceeding that resulted in him being transferred to a maximum-
security working cellblock. On June 5, 2003, Donaldson filed a
§ 1983 complaint with the district court alleging that Lieutenant
Richard Ducote, chairman of the disciplinary board, violated his
Fourteenth Amendment right to due process by denying him a copy
of the disciplinary report used against him in a prison
disciplinary proceeding and by not providing him with a copy of
the written summary of the disciplinary hearing. The complaint
was referred to a magistrate judge, who recommended that the
district court dismiss the case under § 1915(e)(2)(B) because
Donaldson failed to show that his transfer violated a
constitutionally protected liberty or property interest.
Donaldson objected to the magistrate judge’s report and
recommendation. After de novo review, the district court adopted
the report and dismissed Donaldson’s complaint both as frivolous
and for failure to state a claim.
Donaldson filed a notice of appeal but did not pay the
requisite filing fee. In response, the magistrate judge ordered
that Donaldson either pay the fee or file a motion under FED. R.
APP. P. 24(a)(1) to proceed as a pauper on appeal; Donaldson
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chose to file an IFP motion. The motion was referred to the
magistrate judge who issued an order denying it under
§ 1915(a)(3) because she certified that Donaldson’s appeal was
not taken in good faith for the reasons stated in the district
court’s order denying Donaldson’s complaint. See also FED. R.
APP. P. 24(a)(3)(A). Donaldson subsequently moved this court for
permission to proceed IFP on appeal. See FED. R. APP. P.
24(a)(5).
On appeal, this court held that Donaldson’s motion to
proceed IFP was premature because the magistrate judge did not
have jurisdiction to enter a final, appealable order under 28
U.S.C. § 1291 for this court’s review. Donaldson v. Ducote, 373
F.3d 622 (5th Cir. 2004). Therefore we remanded Donaldson's
motion to the district court for the limited purpose of reviewing
the magistrate judge's certification and to enter the appropriate
order. Id. The district court subsequently certified that
Donaldson’s appeal was not taken in good faith for the reasons
set forth in the magistrate report and accordingly issued an
order denying Donaldson’s motion to proceed IFP. By moving this
court for IFP status on appeal, Donaldson is challenging the
district court’s certification order. See Baugh v. Taylor, 117
F.3d 197, 201-02 (5th Cir. 1997).
II. Standard of Review
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We review de novo the lower court’s certification that
Donaldson’s appeal is not taken in good faith. Cruz v. Hauck,
404 U.S. 59, 63 (1971) (per curiam); Baugh, 117 F.3d at 201 n.18.
“‘Good faith’ has been defined as a requirement that an appeal
present a nonfrivolous question for review.” Cruz, 404 U.S. at
62; accord Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983).
Although a plaintiff seeking IFP status need not demonstrate
probable success on the merits, Jackson v. Dallas Police
Department, 811 F.2d 260, 261 (5th Cir. 1986), his complaint will
be deemed frivolous “if it lacks an arguable basis in law or
fact.” Harper v. Showers, 174 F.3d 716, 718 (5th Cir. 1999).
“‘A complaint lacks an arguable basis in law if it is based on an
indisputably meritless legal theory, such as if the complaint
alleges the violation of a legal interest which clearly does not
exist.’” Id. (quoting Davis v. Scott, 157 F.3d 1003, 1005 (5th
Cir. 1998)).
III. Discussion
Donaldson alleges that he was denied due process at his
disciplinary hearing and that this denial implicated his
Fourteenth Amendment rights when he was transferred from “Class A
Trusty” status to the maximum-security working cellblock (i.e.,
“lockdown”) as punishment for a disciplinary infraction. Yet,
after the Supreme Court’s decision in Sandin v. Conner, 515 U.S.
472 (1995), we have held that a prisoner’s change in custody
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status, “without more, does not constitute a deprivation of a
constitutionally cognizable liberty interest.” Luken v. Scott,
71 F.3d 192, 193 (5th Cir. 1995) (per curiam) (emphasis added);
see also Harper, 174 F.3d at 719. To demonstrate a liberty
interest, a prisoner must show either that his classification was
imposed for disciplinary reasons and involves “atypical,
significant” hardships that “present a dramatic departure from
the basic conditions” of prison life, Wilkerson v. Stalder, 329
F.3d 431, 436 (5th Cir. 2003) (quoting Sandin, 515 U.S. at 486),
or that the disciplinary classification “clearly impinge[s] on
the duration of confinement.” Orellana v. Kyle, 65 F.3d 29, 31-
32 (5th Cir. 1995).
Even when viewed liberally, Donaldson’s complaint does not
present a constitutionally cognizable argument on either basis.
First, he does not allege any facts that might support an
inference that his confinement in maximum security is excessively
harsh when compared to the ordinary incidents of prison life.
Second, instead of claiming that this disciplinary sanction will
inevitably lengthen the duration of his sentence, Donaldson
merely suggests that the presence of the disciplinary report in
his prison record “greatly reduce[s] . . . the possibility of
obtaining a reduction in his sentence” by the parole board.
However, “speculative, collateral consequences” of prison
decisions that may affect the timing of parole “do not create
constitutionally protected liberty interests.” See Luken, 71
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F.3d at 193 (stating that speculative, collateral consequences of
prison administrative decisions such as the loss of the
opportunity to earn good-time credits, which might lead to
earlier parole, do not create constitutionally protected liberty
interests).
Accordingly, because Donaldson presents no non-frivolous
issues for appeal, we deny his motion to proceed IFP and dismiss
his appeal under 5TH CIR. R. 42.2. See Baugh, 117 F.3d at 202 &
n.24 (stating that “nothing prevents the appellate court from sua
sponte dismissing the case on the merits pursuant to 5TH CIR. R.
42.2 when it is apparent that an appeal would be meritless.”).
We also note that a prisoner is prohibited from bringing a
civil action or from appealing a judgment under § 1915 if the
prisoner has, on three or more prior occasions, brought an action
or appeal that was dismissed on the grounds that it was
frivolous, malicious, or failed to state a claim. 28 U.S.C.
§ 1915(g). Both the district court’s dismissal of Donaldson’s
complaint and this court’s denial of Donaldson’s motion count as
“strikes” for the purposes of § 1915(g). See Adepegba v.
Hammons, 103 F.3d 383, 388 (5th Cir. 1996). We caution Donaldson
that once he accumulates three strikes, he 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 § 1915(g).
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III. Conclusion
MOTION DENIED; APPEAL DISMISSED AS FRIVOLOUS; SANCTIONS
WARNING ISSUED.
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