Bernstine v. Rhodes, et al

Filing 920060411

Opinion

United States Court of Appeals Fifth Circuit

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

F I L E D
April 11, 2006 Charles R. Fulbruge III Clerk

No. 05-30358 Conference Calendar

DEREK BERNSTINE, Plaintiff-Appellant, versus MICHAEL RHODES, NIKKI MCCOY; HERMAN WILLIAMS, Defendants-Appellees. -------------------Appeal from the United States District Court for the Western District of Louisiana USDC No. 5:04-CV-1743 -------------------Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges. PER CURIAM:* Derek Bernstine, Louisiana prisoner # 416283, appeals the dismissal of his civil rights suit filed pursuant to 42 U.S.C. § 1983 as frivolous and for failure to state a claim under 28 U.S.C. § 1915(e). Bernstine argues that his due process

rights were violated when he was found guilty by a disciplinary board but later exonerated. These allegations, however, fail to

state a claim for a due process violation and are frivolous because the punishment he received was not atypical and did 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-30358 -2affect the length of his confinement. See Sandin v. Conner, 515

U.S. 472, 484 (1995); Orellana v. Kyle, 65 F.3d 29, 31-32 (5th Cir. 1995). Nor do his complaints about his placement in

administrative segregation and the loss of recreation state a claim for cruel and unusual punishment in violation of the Eighth Amendment. 2001). Bernstine's appeal is without arguable merit and is frivolous. 1983). See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. See See Herman v. Holiday, 238 F.3d 660, 664 (5th Cir.

Because the appeal is frivolous, it is dismissed. The dismissal of this appeal as frivolous

5TH CIR. R. 42.2.

counts as a strike under 28 U.S.C. § 1915(g), as does the district court's dismissal of his complaint. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). See Adepegba v. Bernstine is

warned that, if he accumulates three strikes under § 1915(g), he will not be permitted 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 § 1915(g).

APPEAL DISMISSED; SANCTION WARNING ISSUED.