United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 21, 2005
Charles R. Fulbruge III
Clerk
No. 04-41251
Conference Calendar
JESUS M. SANDOVAL,
Plaintiff-Appellant,
versus
RONALD FOX; ANTHONY HOLMES;
FREDERIC EDWARDS; MICHAEL GREHEM,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:04-CV-136-JKG
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Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Jesus M. Sandoval, Texas prisoner # 599965, appeals the
magistrate judge’s dismissal as frivolous of his 42 U.S.C. § 1983
complaint alleging that prison supervisory personnel failed to
take action when guards improperly distributed prison mail. The
magistrate judge alternatively held that Sandoval failed to state
a claim upon which relief could be granted. He argues that the
defendant officers failed to properly train and supervise their
*
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this opinion should not be published and is not precedent except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. 04-41251
-2-
subordinates in mail distribution policies and failed to
implement a policy to protect his constitutional rights.
Sandoval’s complaint and the testimony at the Spears**
hearing reflect that the supervisory officials monitored the mail
problem and instructed their subordinates to follow the policies
concerning the mail. Sandoval’s complaint does not reflect that
the defendants personally delivered his mail to other inmates or
implemented a mail delivery policy that was so deficient that it
reflected deliberate indifference to his right to receive his
mail. Thompson v. Upshur County, TX, 245 F.3d 447, 459 (5th Cir.
2001).
Nor has Sandoval shown that he suffered any constitutionally
cognizable harm. The mere failure to comply with prison rules
and regulations does not, without more, give rise to a
constitutional violation. Meyers v. Klevenhagen, 97 F.3d 91, 94
(5th Cir. 1996). Sandoval’s allegations and his testimony at the
Spears hearing do not reflect that he was deprived of his mail or
that he suffered any actual harm as a result of other inmates’
possessing his mail. Richardson v. McDonnell, 841 F.2d 120, 122
(5th Cir. 1988). Nor did Sandoval allege that the violation of
the mail policy precluded him from filing any specific legal
documents with the court. Walker v. Navarro County Jail, 4 F.3d
410, 413 (5th Cir. 1993).
**
Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
No. 04-41251
-3-
Sandoval has not shown that the alleged acts of wrongdoing
resulted in any injury to his constitutional rights. The
magistrate judge did not abuse her discretion in dismissing the
complaint as frivolous. Further, the court accepts the
allegations and testimony as true and determines that the
complaint fails to state a claim upon which relief could be
granted. See Ashe v. Corley, 992 F.2d 540, 544 (5th Cir. 1993).
Sandoval’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 magistrate judge’s dismissal of Sandoval’s
complaint as frivolous and the dismissal of the instant appeal
as frivolous each count as a strike for purposes of the
three-strikes provision, 28 U.S.C. § 1915(g). See Adepegba v.
Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Moreover,
Sandoval received a previous strike when the district court
dismissed as frivolous a prior 42 U.S.C. § 1983 complaint filed
by Sandoval. See Sandoval v. Johns, No. 00-41276 (5th Cir.
June 29, 2001).
Therefore, Sandoval has accumulated at least three strikes
under 28 U.S.C. § 1915(g), and he is BARRED from proceeding in
forma pauperis in any civil action or appeal filed while he is
incarcerated or detained in any facility unless he shows that he
is under imminent danger of serious physical injury. See 28
U.S.C. § 1915(g).
No. 04-41251
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Sandoval’s motion for appointment of counsel is DENIED.
See Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982).
APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR IMPOSED; MOTION
DENIED.