Case: 15-60508 Document: 00513710183 Page: 1 Date Filed: 10/07/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-60508 FILED
October 7, 2016
Lyle W. Cayce
CURTIS CHRISHAUN EVANS, Clerk
Plaintiff-Appellant
v.
MARSHALL L. FISHER, COMMISSIONER, MISSISSIPPI DEPARTMENT
OF CORRECTIONS; N. HOGAN, Warden,
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:15-CV-353
Before CLEMENT, PRADO, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge: *
On May 11, 2015, Curtis Chrishaun Evans, Mississippi prisoner #L-
2500, sued two Mississippi prison officials under 42 U.S.C. § 1983. Evans
alleged that Commissioner Marshall Fisher and Warden N. Hogan violated his
due process and equal protection rights by finding him guilty of a prison rule
violation, which resulted in a 30-day loss of all privileges, and denying his
appeal that sought to overturn that finding. The district court ordered Evans
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 15-60508
to supplement his complaint with specific statements about how Fisher and
Hogan violated his constitutional rights. In response, Evans asserted that
Fisher and Hogan are “entrusted . . . to ensure that [prison officials do] not
violate the federal[] and state rights of persons in [their] custody.” He urged
that Fisher and Hogan violated his constitutional rights because they “did not
grant [Evans’s] appeal, letting this [Rule Violation Report] stand . . . .”
On July 2, 2015, the district court dismissed Evans’s suit as frivolous
and for failure to state a claim. See generally 28 U.S.C. § 1915(e)(2)(B) (“[T]he
court shall dismiss the case at any time if the court determines that . . . the
action or appeal--(i) is frivolous or malicious; [or] (ii) fails to state a claim on
which relief may be granted . . . .”). An appeal is frivolous if it “lacks an
arguable basis in law or fact.” Taylor v. Johnson, 257 F.3d 470, 472 (5th Cir.
2001). As the district court noted, privilege restrictions, such as the ones
imposed on Evans here, are “merely changes in the conditions of his
confinement and do not implicate due process concerns.” Madison v. Parker¸
104 F.3d 765, 768 (5th Cir. 1997); accord Lewis v. Dretke, No. 02-40956, 2002
WL 31845293, at *1 (5th Cir. Dec. 11, 2002) (unpublished). Regarding Evans’s
equal protection claim, the district court correctly noted that, even construing
his complaint broadly, his bare assertion that Fisher and Hogan violated the
Equal Protection Clause does not suffice. See McAlister v. Livingston, 348 F.
App’x 923, 938 (5th Cir. 2009) (unpublished) (“A prisoner . . . may not rest an
equal protection claim ‘on only his personal belief that discrimination played a
part’ in the complained-of act.” (quoting Woods v. Edwards, 51 F.3d 577, 580
(5th Cir. 1995))). The district court therefore dismissed Evans’s complaint and
warned him that the dismissal will count as a “strike” under the Prison
Litigation Reform Act.
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Evans appealed from the judgment of dismissal and asked the district
court to allow him to proceed in forma pauperis on appeal. A claimant may
appeal in forma pauperis only if he meets three requirements. First, he must
submit “an affidavit [stating that he] is unable to pay such fees or give security
therefor.” § 1915(a)(1); accord Fed. R. App. P. 24(a)(1)(A). Second, the
claimant must “state[] the issues that the party intends to present on appeal.”
Fed. R. App. P. 24(a)(1)(C); accord § 1915(a)(1). Third, the litigant’s appeal
must be “taken in good faith.” § 1915(a)(3). A claimant appeals in “good faith”
when he seeks review of an issue “arguable on [its] merits (and therefore not
frivolous).” Robinson v. United States, 812 F.3d 476, 476 (5th Cir. 2016)
(quoting Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983)). The district court
denied Evans’s motion to appeal in forma pauperis, finding only that—
consistent with its order of dismissal—he failed to present “a good faith non-
frivolous issue for appeal.” The district court did not address Evans’s financial
ability to pay the costs of an appeal.
Evans now attempts to challenge the district court’s certification that he
does not appeal in good faith by asking this court to allow him to proceed in
forma pauperis. His only argument is that “nothing has changed with [his]
inmate accounts to justify the district court’s denial” of in forma pauperis
status. Evans does not challenge the district court’s conclusion that his appeal
is frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997) (“When the
prisoner opts to challenge the certification decision, the motion must be
directed solely to the trial court’s reasons for the certification decision.”).
Because Evans has not shown that his appeal is not frivolous, we DENY his
motion to proceed in forma pauperis and DISMISS his appeal as frivolous.
Because Evans now has at least two “strikes” against him, we WARN that
another dismissal for frivolousness will preclude him from proceeding in forma
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pauperis in any civil action or appeal while he is incarcerated or detained in
any facility unless he “is under imminent danger of serious physical injury.” §
1915(g).
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