United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT February 10, 2005
Charles R. Fulbruge III
Clerk
04-60627
Summary Calendar
DESMOND EARL PHILLIPS,
Plaintiff-Appellant,
versus
CAROLYN WALKER, Lieutenant, Unit Administration, in her
official and individual capacities; DONALD A. CABANA,
Superintendent, in his official and individual capacities;
CHRISTOPHER B. EPPS, COMMISSIONER, MISSISSIPPI DEPARTMENT OF
CORRECTIONS, in his official and individual capacities;
QUEEN CHILDS, Property Officer, in her official and individual
capacities; LEONARD C. VINCENT, Senior Counsel, in his
official and individual capacities; JAMES NORRIS, Senior
Counsel, in his official and individual capacities,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 4:04-CV-143-M-B
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Desmond Earl Phillips, Mississippi prisoner #35002, moves for
leave to proceed in forma pauperis (IFP) in this appeal from a 42
U.S.C. § 1983 action challenging the confiscation and destruction
of a box of legal papers that had been held in the Parchman legal
*
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this opinion should not be published and is not precedent except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.
files storage area. The papers were destroyed pursuant to a prison
policy limiting the amount of legal materials an inmate could keep
in prison storage. The district court denied Phillips’s motion for
leave to proceed IFP on appeal, certifying that the appeal was not
taken in good faith.
Phillips challenges the district court’s determination that
his appeal was not taken in good faith. See Baugh v. Taylor, 117
F.3d 197, 202 (5th Cir. 1997). To establish good faith, Phillips
must show that his appeal involves legal points which are arguable
on their merits and not frivolous. See Howard v. King, 707 F.2d
215, 220 (5th Cir. 1983). Phillips contends that the district
court erred by failing to state reasons for its certification
decision and asserts that he was denied his right of access to the
courts because the destruction of his legal materials prevented him
from meeting the deadline to file a petition for a writ of
certiorari with the United States Supreme Court. Because Phillips
has not shown that he would have raised a nonfrivolous issue if he
had been able to file a timely petition for writ of certiorari, he
has not established actual injury. See Lewis v. Casey, 518 U.S.
343, 351-52, 355 (1996); Ruiz v. United States, 160 F.3d 273, 275
(5th Cir. 1998).
Accordingly, we uphold the district court’s certification that
the appeal presents no nonfrivolous issues. Phillip’s motion for
2
leave to proceed IFP on appeal is denied, and his appeal is
dismissed as frivolous. See Baugh, 117 F.3d at 202 n.24.
The district court’s dismissal of Phillip’s complaint as
frivolous and this dismissal both count as strikes under 28 U.S.C.
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir.
1996). Phillips is warned that if he accumulates a third strike,
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 28 U.S.C. §
1915(g).
IFP MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED
3