United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 23, 2005
Charles R. Fulbruge III
Clerk
No. 04-60276
Conference Calendar
DENNIS LENOIR,
Plaintiff-Appellant,
versus
ETHEL CARLIZE; LISA ECHOLS; MICHAEL WILSON; CHRISTOPHER EPPS,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 4:04-CV-10-P-D
--------------------
Before BARKSDALE, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
Dennis Lenoir, Mississippi state prisoner # 31073,
proceeding pro se, moves for leave to proceed in forma pauperis
(IFP) in an appeal of the district court’s final judgment that
dismissed his 42 U.S.C. § 1983 complaint for failure to state a
claim upon which relief may be granted. Lenoir’s IFP motion is a
challenge to the district court’s certification that his appeal
is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197,
202 (5th Cir. 1997).
*
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this opinion should not be published and is not precedent except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. 04-60276
-2-
Lenoir contends that his inmate account has been improperly
debited by the defendants. Lenoir also argues in conclusory
fashion that his action is not frivolous “because of the liberty
interest and ‘statutory due process’ afforded through the
defendant(s) and their agency’s policies.” Id. at 4.
Lenoir’s placement in solitary confinement, as alleged in
his complaint, does not violate his constitutional rights, see
Sandin v. Conner, 515 U.S. 472, 486 (1995), and his alleged
improper fine does not affect his freedom from restraint.
Likewise, Lenoir’s alleged change in custodial classification
does not affect a protectable liberty interest. See Neals v.
Norwood, 59 F.3d 530, 533 (5th Cir. 1995). Because Lenoir did
not allege that he received any punishment that would implicate a
due process concern, neither the Due Process Clause nor prison
regulations afford Lenoir a protected liberty interest that
would entitle him to the procedural protections provided by Wolff
v. McDonnell, 418 U.S. 539, 556, 564-66 (1974). See Sandin,
515 U.S. at 487.
Lenoir has not shown that the district court erred in
certifying that an appeal would not be taken in good faith.
He has not shown that he will present a nonfrivolous issue on
appeal. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983).
Accordingly, the motion for leave to proceed IFP is DENIED and
the appeal is DISMISSED as frivolous. See Baugh, 117 F.3d at 202
n.24; 5TH CIR. R. 42.2.
No. 04-60276
-3-
The dismissal of this appeal and the district court’s
dismissal of Lenoir’s complaint for failure to state a claim
count as strikes under 28 U.S.C. § 1915(g). See Adepegba v.
Hammons, 103 F.3d 383, 387 (5th Cir. 1996). Lenoir is CAUTIONED
that if he accumulates three strikes under 28 U.S.C. § 1915(g),
he will not be able to 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.
28 U.S.C. § 1915(g).
IFP MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.