Deon Ballard v. Connie Pierce, et al

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UNPUBLISHED OPINION FILED. [10-60276 Dismissed as frivolous ] Judge: CDK , Judge: FPB , Judge: JWE Mandate pull date is 12/13/2010; granting motion to correct brief filed by Appellant Mr. Deon Scott Ballard [6581073-2] [10-60276]

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Deon Ballard v. Connie se: 10-60276 Ca Pierce, et al Document: 00511301562 Page: 1 Date Filed: 11/22/2010 Doc. 0 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 10-60276 S u m m a r y Calendar November 22, 2010 Lyle W. Cayce Clerk D E O N SCOTT BALLARD, P la in t if f -A p p e lla n t , v. C O N N IE PIERCE; DEBRA PLATT; RONALD KING; CHRISTOPHER B. EPPS; L . SINGLETON, Pin # 357175; TRACEY L. SANDERS, D e fe n d a n t s -A p p e lle e s . A p p e a l from the United States District Court fo r the Southern District of Mississippi U S D C No. 2:10-CV-1 B e fo r e KING, BENAVIDES, and ELROD, Circuit Judges: P E R CURIAM:* P r o c e e d in g pro se, Deon Scott Ballard, Mississippi prisoner # 144373, a p p e a ls the dismissal of his 42 U.S.C. 1983 complaint for failure to state a c la im under 28 U.S.C. 1915(e)(2)(B)(ii). a p p e lla te brief is GRANTED. I n his complaint, Ballard alleges that prison officials violated state c o r r e c t io n a l rules and prison policies by requiring him to work in the prison's Ballard's motion to amend his Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. * Dockets.Justia.com Case: 10-60276 Document: 00511301562 Page: 2 Date Filed: 11/22/2010 No. 10-60276 d in in g hall without his consent in violation of the Due Process Clause and the T h ir t e e n t h Amendment. After he refused to report to work, he alleges, he was fo u n d guilty of failing to carry out a work assignment in several disciplinary a c t io n s and sentenced each time to 30 days without telephone, visitation, and s t o r e privileges. He argues that prison regulations and state law created a p r o t e c t e d liberty interest in being free from involuntary work assignment and t h a t he was wrongfully disciplined for refusing to comply with the assignment. He also argues that the prison investigator was biased, the investigation was in a d e q u a t e under prison regulations, the adjudicator was biased, no evidence s u p p o r t e d the finding of guilt, the adjudicator failed to provide adequate reasons fo r the guilty finding, and his prison appeal was mishandled. We review a dismissal under 1915(e)(2)(B)(ii) de novo. Samford v. D r e tk e , 562 F.3d 674, 678 (5th Cir. 2009). Punishments such as the temporary lo s s of telephone, visitation, and commissary privileges at issue here do not " p r e s e n t the type of atypical, significant deprivation in which a State might c o n c e iv a b ly create a liberty interest" and do not implicate due process concerns. See Sandin v. Conner, 515 U.S. 472, 486 (1995); see also Tilmon v. Prator, 368 F .3 d 521, 522, 524 (5th Cir. 2004); Martin v. Scott, 156 F.3d 578, 579 n.1, 580 (5 t h Cir. 1998). The alleged violations of state law and prison policy arising from B a lla r d 's work assignment and disciplinary proceedings, even if true, likewise fa il to state a claim for relief under 1983. See Calhoun v. Hargrove, 312 F.3d 7 3 0 , 734 (5th Cir. 2002). Finally, Ballard fails to state a claim under 1983 for a violation of the Thirteenth Amendment because he does not challenge the v a lid it y of his conviction or allege facts that amount to unconstitutional in v o lu n t a r y servitude. See U.S. Const. amend. XIII, 1; Williams v. Henagan, 5 9 5 F.3d 610, 621-22 (5th Cir. 2010). T h e instant appeal is without arguable merit and therefore frivolous. See S a m fo r d , 562 F.3d at 678. Accordingly, it is dismissed. See 5th Cir. R. 42.2. The dismissal of this appeal and the district court's dismissal of Ballard's 2 Case: 10-60276 Document: 00511301562 Page: 3 Date Filed: 11/22/2010 No. 10-60276 c o m p la in t each count as a strike for purposes of 1915(g). We caution Ballard t h a t , once he accumulates three strikes, he may not proceed in forma pauperis in any civil action or appeal filed while he is incarcerated or detained in any fa c ilit y , unless he is under imminent danger of serious physical injury. See 1915(g); Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). A P P E A L DISMISSED AS FRIVOLOUS; SANCTION WARNING ISSUED. 3

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