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, 2006
Charles R. Fulbruge III
Clerk
No. 05-30420
Conference Calendar
EDGAR J. THEARD, III,
Plaintiff-Appellant,
versus
BURL CAIN; DORA RABALAIS; RICHARD L. STALDER;
UNKNOWN STERLING; UNKNOWN PORET; PEGGY LESLIE;
COL UNKNOWN JONES; UNKNOWN BULTER; UNKNOWN BRADLEY,
Defendants-Appellees.
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Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:04-CV-728
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Before STEWART, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Edgar J. Theard III, Louisiana prisoner # 104140, moves this
court for leave to proceed in forma pauperis (IFP) on appeal
following the district court’s dismissal of his pro se and IFP
civil rights complaint. The district court dismissed the
complaint for failure to state a claim under 28 U.S.C.
§ 1915(e)(2)(B)(ii). We construe Theard’s motion as a challenge
to the district court’s determination that the appeal is not
*
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this opinion should not be published and is not precedent except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. 05-30420
-2-
taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202
(5th Cir. 1997).
Theard does not identify any specific constitutional right
that he was exercising when he allegedly was disciplined for
refusing to report on the misconduct of other prisoners.
Accordingly, he fails to state a cognizable retaliation claim.
See Jones v. Greninger, 188 F.3d 322, 324-25 (5th Cir. 1999).
Theard cannot show a due process violation in connection with the
disciplinary proceedings because his good-time credits have been
restored and his confinement to administrative segregation does
not constitute an “atypical and significant hardship triggering
due process.” See Sandin v. Conner, 515 U.S. 472, 484 (1995);
Malchi v. Thaler, 211 F.3d 953, 959 (5th Cir. 2000); Madison v.
Parker, 104 F.3d 765, 767-68 (5th Cir. 1999) (cell restriction
does not implicate due process). With respect to the loss of the
use of his cane, Theard has failed to prove that the defendants
were deliberately indifferent to a substantial risk of serious
harm. See Hare v. City of Corinth, Miss., 74 F.3d 633, 648
(5th Cir. 1996); Farmer v. Brennan, 511 U.S. 825, 847 (1994).
Theard has failed to establish that he seeks to present a
nonfrivolous issue for appeal. Accordingly, his motion for IFP
is denied, and the appeal dismissed as frivolous. See Baugh,
117 F.3d at 202 n.24; 5TH CIR. R. 42.2. We caution Theard that he
has accumulated two strikes under 28 U.S.C. § 1915(g). See
Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996). If he
No. 05-30420
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accumulates three strikes, he may no longer 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 § 1915(g); Carson v. Johnson, 112 F.3d 818,
819 (5th Cir. 1997).
MOTION FOR IFP DENIED; APPEAL DISMISSED AS FRIVOLOUS;
SANCTION WARNING ISSUED.