Brown v. Williams

United States Court of Appeals

Fifth Circuit

F I L E D

IN THE UNITED STATES COURT OF APPEALS March 23, 2005

FOR THE FIFTH CIRCUIT

Charles R. Fulbruge III

Clerk

No. 04-30863

Summary Calendar

KRAFT BROWN,

Plaintiff-Appellant,

versus

ROY WILLIAMS; J. WILLIAMS; BRYAN WILSON; JEAN McKAY;

H. RAGLE; ROBERT Y. HENDERSON; JIM ROGER; JOANN

PESHOFF; SAMUEL W. MATTHIS,

Defendants-Appellees.

- - - - - - - - - -

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 2:04-CV-705-PM

- - - - - - - - - -

Before REAVLEY, JOLLY, and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:*

Kraft Brown, a Louisiana prisoner (# 106854), appeals the

district court’s sua sponte dismissal of his pro se, in forma

pauperis (“IFP”) 42 U.S.C. § 1983 civil rights complaint as

frivolous and for failure to state a claim, pursuant to 28 U.S.C.

§ 1915(e)(2)(B). In the complaint, Brown alleged that the

defendants, who were various officials at his prison, had

retaliated against him for exercising his Fourth Amendment and

due process rights. He asserted that he was found guilty of the

disciplinary offense of aggravated disobedience for refusing to

*

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this opinion should not be published and is not precedent except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. 04-30863

-2-

provide a DNA sample and penalized with 10 days of administrative

segregation and the loss of incentive pay. Allegedly, the

defendants had told him that LA. REV. STAT. ANN. § 15.609 permitted

them to use force to collect a DNA sample, but Brown had asserted

that the statute permitted inmates convicted prior to September

1999, like Brown, to refuse such collection. Brown asserted that

he eventually agreed to provide a sample, but only after

defendants continued to threaten him verbally.

This court has held that a Texas statute, TEX. GOV’T CODE

§ 411.148, which provides for the collection of blood samples

from felons for registration in a DNA databank, does not violate

those felons’ Fourth Amendment right to privacy. Velasquez v.

Woods, 329 F.3d 420, 421 (5th Cir. 2003). Because the Texas

statute is nearly identical to the Louisiana statute at issue

here, Brown’s challenge to the statute is frivolous. Insofar as

Brown is arguing that he is not challenging the constitutionality

of LA. REV. STAT. ANN. § 15.609 but that its incorrect application

to him violated his due process rights, his claim is likewise

frivolous because a mere violation of state law does not state a

constitutional claim under 42 U.S.C. § 1983. Giovanni v. Lynn,

48 F.3d 908, 912-13 (5th Cir. 1995). Brown’s due process

challenge to his disciplinary penalties is frivolous because

those penalties did not amount to an “atypical and significant

hardship . . . in relation to the ordinary incidents of prison

life.” Sandin v. Conner, 515 U.S. 472, 484 (1995); Pichardo v.

Kinker, 73 F.3d 612, 612 (5th Cir. 1995). Because Brown has not

identified a specific constitutional right that the defendants

No. 04-30863

-3-

violated, he failed to state a cognizable retaliation claim.

Jones v. Greninger, 188 F.3d 322, 324-25 (5th Cir. 1999).

Finally, Brown’s allegation of verbal threats did not state a

constitutional claim. Siglar v. Hightower, 112 F.3d 191, 193

(5th Cir. 1997); McFadden v. Lucas, 713 F.3d 143, 146 (5th Cir.

1983). The court did not abuse its discretion in dismissing the

complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). Taylor v.

Johnson, 257 F.3d 470, 472 (5th Cir. 2001).

Brown’s appeal is without arguable merit. See Howard v.

King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly, we DISMISS

the appeal as frivolous. 5TH CIR. R. 42.2. The dismissal of the

instant appeal as frivolous counts as a strike for purposes of

the three-strikes provision, 28 U.S.C. § 1915(g), as does the

district court’s dismissal. See Adepegba v. Hammons, 103 F.3d

383, 387-88 (5th Cir. 1996). In 2000, the district court

dismissed as frivolous a prior 42 U.S.C. § 1983 complaint by

Brown. Brown v. White, No. 2:00-CV-119 (W.D. La. July, 18,

2000). Brown has thus accumulated three strikes. Accordingly,

we CAUTION Brown that hereafter he may not proceed IFP 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 28 U.S.C. § 1915(g).

APPEAL DISMISSED; SANCTION WARNING ISSUED.