United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS March 23, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-30863
Summary Calendar
KRAFT BROWN,
Plaintiff-Appellant,
versus
ROY WILLIAMS; J. WILLIAMS; BRYAN WILSON; JEAN McKAY;
H. RAGLE; ROBERT Y. HENDERSON; JIM ROGER; JOANN
PESHOFF; SAMUEL W. MATTHIS,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:04-CV-705-PM
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Before REAVLEY, JOLLY, and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
Kraft Brown, a Louisiana prisoner (# 106854), appeals the
district court’s sua sponte dismissal of his pro se, in forma
pauperis (“IFP”) 42 U.S.C. § 1983 civil rights complaint as
frivolous and for failure to state a claim, pursuant to 28 U.S.C.
§ 1915(e)(2)(B). In the complaint, Brown alleged that the
defendants, who were various officials at his prison, had
retaliated against him for exercising his Fourth Amendment and
due process rights. He asserted that he was found guilty of the
disciplinary offense of aggravated disobedience for refusing to
*
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this opinion should not be published and is not precedent except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. 04-30863
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provide a DNA sample and penalized with 10 days of administrative
segregation and the loss of incentive pay. Allegedly, the
defendants had told him that LA. REV. STAT. ANN. § 15.609 permitted
them to use force to collect a DNA sample, but Brown had asserted
that the statute permitted inmates convicted prior to September
1999, like Brown, to refuse such collection. Brown asserted that
he eventually agreed to provide a sample, but only after
defendants continued to threaten him verbally.
This court has held that a Texas statute, TEX. GOV’T CODE
§ 411.148, which provides for the collection of blood samples
from felons for registration in a DNA databank, does not violate
those felons’ Fourth Amendment right to privacy. Velasquez v.
Woods, 329 F.3d 420, 421 (5th Cir. 2003). Because the Texas
statute is nearly identical to the Louisiana statute at issue
here, Brown’s challenge to the statute is frivolous. Insofar as
Brown is arguing that he is not challenging the constitutionality
of LA. REV. STAT. ANN. § 15.609 but that its incorrect application
to him violated his due process rights, his claim is likewise
frivolous because a mere violation of state law does not state a
constitutional claim under 42 U.S.C. § 1983. Giovanni v. Lynn,
48 F.3d 908, 912-13 (5th Cir. 1995). Brown’s due process
challenge to his disciplinary penalties is frivolous because
those penalties did not amount to an “atypical and significant
hardship . . . in relation to the ordinary incidents of prison
life.” Sandin v. Conner, 515 U.S. 472, 484 (1995); Pichardo v.
Kinker, 73 F.3d 612, 612 (5th Cir. 1995). Because Brown has not
identified a specific constitutional right that the defendants
No. 04-30863
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violated, he failed to state a cognizable retaliation claim.
Jones v. Greninger, 188 F.3d 322, 324-25 (5th Cir. 1999).
Finally, Brown’s allegation of verbal threats did not state a
constitutional claim. Siglar v. Hightower, 112 F.3d 191, 193
(5th Cir. 1997); McFadden v. Lucas, 713 F.3d 143, 146 (5th Cir.
1983). The court did not abuse its discretion in dismissing the
complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). Taylor v.
Johnson, 257 F.3d 470, 472 (5th Cir. 2001).
Brown’s appeal is without arguable merit. See Howard v.
King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly, we DISMISS
the appeal as frivolous. 5TH CIR. R. 42.2. The dismissal of the
instant appeal as frivolous counts as a strike for purposes of
the three-strikes provision, 28 U.S.C. § 1915(g), as does the
district court’s dismissal. See Adepegba v. Hammons, 103 F.3d
383, 387-88 (5th Cir. 1996). In 2000, the district court
dismissed as frivolous a prior 42 U.S.C. § 1983 complaint by
Brown. Brown v. White, No. 2:00-CV-119 (W.D. La. July, 18,
2000). Brown has thus accumulated three strikes. Accordingly,
we CAUTION Brown that hereafter 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).
APPEAL DISMISSED; SANCTION WARNING ISSUED.