United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 21, 2005
Charles R. Fulbruge III
Clerk
No. 04-30925
Summary Calendar
DENARD DARNELL NEAL,
Plaintiff-Appellant,
versus
FEDERAL BUREAU OF PRISONS; KATHLEEN HAWK-SAWYER;
RONALD WAYNE THOMPSON; CARL CASTERLINE; JANE
HASCHEMEYER; WHITE, Mailroom Supervisor; ERICKSON,
Assistant Mailroom Supervisor; HALTIWANGER; CASTILLO;
PHELPS; SMITH; HARRELL WATTS; SHERRELL BOZEMAN;
LESTER PHILLIPS, In His Individual and Official
Capacity; TRANSOU, In His Individual and Official
Capacity; BOBBY TYLER,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:02-CV-1908-FAL
USDC No. 1:02-CV-1942-FAL
--------------------
Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Denard Darnell Neal, federal prisoner #23843-008, appeals
the dismissal of his Bivens** action. His argument that the
district court erred in not holding an evidentiary hearing and in
*
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this opinion should not be published and is not precedent except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.
**
Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971).
No. 04-30925
-2-
not ordering the defendants to file answers to his compliant
before dismissing his complaint is without merit. See 28 U.S.C.
§ 1915(e). Neal’s argument that the magistrate judge’s report
violated 28 U.S.C. § 636 because the parties had not consented to
proceed before a magistrate judge is also without merit. See 28
U.S.C. § 636(b)(1)(B).
Neal argues that the prison’s forced interview of him
relating to a criminal matter in the prison and his subsequent
placement in segregation for his failure to cooperate during the
interview violated his Fifth Amendment rights against self-
incrimination and to equal protection under the law. His self-
incrimination claim is without merit as he conceded in his
complaint that the interview regarded the actions of “another
inmate,” see Cal. Bankers Ass’n v. Schultz, 416 U.S. 21, 55
(1974), and he did not adequately allege an equal protection
violation, see Muhammad v. Lynaugh, 966 F.2d 901, 903 (5th Cir.
1992).
He argues that abuses of the inmate trust fund by prison
employees violated the Fifth Amendment’s Takings Clause. His
allegations regarding the typewriter print wheels, the equipment
bought for the prison staff’s personal use, his grievances
regarding the purchase of that equipment, and the prison’s
alleged violation of his rights under the Fifth Amendment’s
Takings Clause are raised for the first time in this court and
will not be considered. See Leverette v. Louisville Ladder Co.,
No. 04-30925
-3-
183 F.3d 339, 342 (5th Cir. 1999). Neal’s allegations that the
prison’s selling of typewriter ribbon to the inmates violated the
Racketeer Influenced and Corrupt Organizations Act and was a
continuing criminal enterprise were conclusory in the district
court and are conclusory before this court. See Yohey v.
Collins, 985 F.2d 222, 225 (5th Cir. 1993). Accordingly, those
claims also will not be considered. Id.
Neal argues that abuses of the prison grievance system by
prison employees violated his First and Eighth Amendment rights.
As he provides no support for his Eighth Amendment claim, it will
not be considered. See id. Moreover, as he fails to identify
when he was unable to petition the Government for redress of his
grievances, when he was retaliated against for filing grievances,
or how the named defendants were involved in the alleged abuses,
he has failed to show how his First Amendment rights were
violated. See Allen v. Thomas, 388 F.3d 147, 149 (5th Cir.
2004); Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983).
He argues that prison employees tampered with his mail and
that the mail tampering violated his First Amendment rights.
Neal does not demonstrate any error in the district court’s
analysis of this claim or otherwise show how the reading or
opening of his mail violated his constitutional rights. See
Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744,
748 (5th Cir. 1987); Yohey, 985 F.2d at 225. Neal also has not
demonstrated that the postmaster general violated any criminal
No. 04-30925
-4-
statute or that she had a legal duty to investigate his claims of
mail tampering.
All of Neal’s remaining arguments before the district court
have been abandoned. See Yohey, 985 F.2d at 225. Neal’s appeal
is without arguable merit and is frivolous. See Howard v. King,
707 F.2d 215, 219-20 (5th Cir. 1983). Because the appeal is
frivolous, it is DISMISSED. See 5TH CIR. R. 42.2. The district
court’s dismissal of Neal’s case as frivolous or for failure to
state a claim counts as one strike under 28 U.S.C. § 1915(g), and
the dismissal of the instant appeal as frivolous counts as
another strike under 28 U.S.C. § 1915(g). See Adepegba v.
Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). We warn Neal that
if he accumulates three strikes under 28 U.S.C. § 1915(g), he
will not be able to proceed 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; SANCTION WARNING ISSUED.