IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 2, 2009
No. 08-60646
Summary Calendar Charles R. Fulbruge III
Clerk
ROGER JOHNSON
Plaintiff-Appellant
v.
ROGER LEWIS, Captain
Defendant-Appellee
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 4:08-CV-24
Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Roger Johnson, Mississippi prisoner # 59930, appeals from the district
court’s dismissal with prejudice of his 42 U.S.C. § 1983 complaint for failure to
state a claim upon which relief may be granted. Because he has failed to brief
the dismissal of his claim regarding the denial of medical treatment, that issue
is deemed abandoned. See Yohey v. Collins, 985 F.2d 222, 224–25 (5th Cir.
1993).
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-60646
Johnson argues that the district court failed to properly weigh and assess
the relevant factors regarding his claim of excessive force. Our review indicates
that all of those factors weigh against Johnson’s excessive-force claim. See
Hudson v. McMillian, 503 U.S. 1, 5–7 (1992). The record shows that there was
a need for the application of force, Johnson ignored a clear warning regarding
the need for force, and Captain Roger Lewis’s use of force was a good-faith effort
to maintain or restore discipline. As to his claim regarding denial of access to
the courts, Johnson’s arguments that he may have been prejudiced by the loss
of certain legal materials fail to show the actual prejudice required to support
his claim. See Lewis v. Casey, 518 U.S. 343, 351–52 (1996).
Regarding his due process claim, Johnson argues for the first time on
appeal that the Rule Violation Report (RVR) issued by Captain Lewis, in
conjunction with two other RVRs Johnson received on other occasions, resulted
in his placement into D-custody and administrative lockdown. That argument
is not cognizable because it was not presented to the district court. See LeMaire
v. La. Dep’t of Transp. & Dev., 480 F.3d 383, 387 (5th Cir. 2007). Moreover, even
if we were to consider that argument, it fails to implicate a protected liberty
interest because Johnson’s placement into D-custody and administrative
lockdown do not present atypical, significant deprivations in relation to the
ordinary incidents of prison life. See Sandin v. Conner, 515 U.S. 472, 486 (1995);
Wilson v. Budney, 976 F.2d 957, 958 (5th Cir. 1992). As the district court’s
dismissal of Johnson’s complaint was therefore proper, the judgment of the
district court is affirmed. See Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir.
1999).
The district court’s dismissal of Johnson’s complaint counts as a strike for
purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383,
387–88 (5th Cir. 1996). Johnson has already accumulated at least two other
strikes. See Johnson v. Dorsey, No. 4:08-CV-00023 (N.D. Miss. Apr. 4, 2008);
Johnson v. Presley, No. 4:07-CV-00105 (N.D. Miss. July 26, 2007). Johnson is
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No. 08-60646
therefore barred from proceeding in forma pauperis pursuant to § 1915 while he
is incarcerated or detained in any facility unless he is under imminent danger
of serious physical injury. See § 1915(g).
AFFIRMED; 28 U.S.C. § 1915(g) BAR IMPOSED.
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