Nathaniel Anderson v. James LeBlanc, et al

Filing

UNPUBLISHED OPINION ORDER FILED. [13-31279 Dismissed as Frivolous] Judge: CDK , Judge: ECP , Judge: CH. Mandate pull date is 09/25/2014; denying motion to proceed IFP in accordance with PLRA filed by Appellant Mr. Nathaniel Anderson [7625550-2] [13-31279]

Case: 13-31279

Document: 00512756278

Page: 1

Date Filed: 09/04/2014

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

No. 13-31279

FILED
September 4, 2014

NATHANIEL ANDERSON,

Lyle W. Cayce
Clerk

Plaintiff-Appellant
v.
JAMES M. LEBLANC, Secretary of Department of Corrections; NATHAN B.
CAIN, Warden; CHAD J. MENZINA, Associate Warden; LOUIS STROUD,
Major,
Defendants-Appellees
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:13-CV-541
Before KING, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *
Nathaniel Anderson, Louisiana prisoner # 130547, moves for leave to
proceed in forma pauperis (IFP) to appeal the district court’s dismissal of his
42 U.S.C. § 1983 complaint as frivolous. Anderson argues that (1) his claim is
cognizable because he alleged the deprivation of property interests without due
process, (2) the closure of the hobby shop constituted a seizure under the

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-31279
Fourth Amendment, and (3) the district court should have allowed him to
amend his complaint before it was dismissed.
By moving to proceed IFP, Anderson is challenging the district court’s
certification that his appeal is not taken in good faith under 28 U.S.C.
§ 1915(a)(3). See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our
inquiry into an appellant’s good faith “is limited to whether the appeal involves
legal points arguable on their merits (and therefore not frivolous).” Howard v.
King, 707 F.2d 215, 220 (5th Cir. 1983) (internal quotation marks and citation
omitted).
Anderson has failed to identify a constitutionally protected liberty or
property interest. See Sandin v. Conner, 515 U.S. 472, 484 (1995); Board of
Regents v. Roth, 408 U.S. 564, 569-70 (1972). Although he also alleged that the
defendants violated his rights under the Fourth Amendment and the Equal
Protection Clause, he has failed to show that he had an expectation of privacy
or that the defendants acted with discriminatory purposes. See United States
v. Ward, 561 F.3d 414, 419 (5th Cir. 2009); Woods v. Edwards, 51 F.3d 577,
580 (5th Cir. 1995). Anderson has failed to show that the district court abused
its discretion by dismissing his complaint without first permitting him to
amend it. See Brewster v. Dretke, 587 F.3d 764, 768 (5th Cir. 2009). Because
Anderson has failed to raise a nonfrivolous issue for appeal, his motion for
leave to proceed IFP on appeal is DENIED and his appeal is DISMISSED as
frivolous. 5TH CIR. R. 42.2.
The district court’s dismissal of Anderson’s § 1983 complaint as frivolous
and the dismissal of this appeal as frivolous count as strikes under § 1915(g).
See § 1915(g); Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).
Anderson is WARNED that if he accumulates three strikes, he will not be
allowed to proceed IFP in any civil action or appeal filed while he is

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incarcerated or detained in any facility unless he is under imminent danger of
serious physical injury. See § 1915(g).

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