Sandoval v. Fox, 135 F. App'x 691

Sandoval v. Fox

135 F. App'x 691

5th Cir.

2005

Check Treatment

Docket

Jesus M. SANDOVAL, Plaintiff-Appellant, v. Ronald FOX; Anthony Holmes; Frederic Edwards; Michael Grehem, Defendants-Appellees.

No. 04-41251

United States Court of Appeals, Fifth Circuit

Decided June 21, 2005

691

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

Conference Calendar.

Jesus Mendez Sandoval, Tennessee Colony, TX, pro se.

PER CURIAM:^*

Jesus M. Sandoval, Texas prisoner # 599965, appeals the magistrate judge‘s dismissal as frivolous of his 42 U.S.C. § 1983 complaint alleging that prison supervisory personnel failed to take action when guards improperly distributed prison mail. The magistrate judge alternatively held that Sandoval failed to state a claim upon which relief could be granted. He argues that the defendant officers failed to properly train and supervise their subordinates in mail distribution policies and failed to implement a policy to protect his constitutional rights.

Sandoval‘s complaint and the testimony at the Spears^** hearing reflect that the supervisory officials monitored the mail problem and instructed their subordinates to follow the policies concerning the mail. Sandoval‘s complaint does not reflect that the defendants personally delivered his mail to other inmates or implemented a mail delivery policy that was so deficient that it reflected deliberate indifference to his right to receive his mail.

Thompson v. Upshur County, TX, 245 F.3d 447, 459 (5th Cir. 2001).

Nor has Sandoval shown that he suffered any constitutionally cognizable harm. The mere failure to comply with prison rules and regulations does not, without more, give rise to a constitutional violation.

Meyers v. Klevenhagen, 97 F.3d 91, 94 (5th Cir. 1996). Sandoval‘s allegations and his testimony at the Spears hearing do not reflect that he was deprived of his mail or that he suffered any actual harm as a result of other inmates’ possessing his mail. . Nor did Sandoval allege that the violation of the mail policy precluded him from filing any specific legal documents with the court. .

Sandoval has not shown that the alleged acts of wrongdoing resulted in any injury to his constitutional rights. The magistrate judge did not abuse her discretion in dismissing the complaint as frivolous. Further, the court accepts the allegations and testimony as true and determines that the complaint fails to state a claim upon which relief could be granted. See

Ashe v. Corley, 992 F.2d 540, 544 (5th Cir. 1993).

Sandoval‘s appeal is without arguable merit and is frivolous. See

Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Because the appeal is frivolous, it is DISMISSED. See 5TH CIR. R. 42.2. The magistrate judge‘s dismissal of Sandoval‘s complaint as frivolous and the dismissal of the instant appeal as frivolous each count as a strike for purposes of the three-strikes provision, 28 U.S.C. § 1915(g). See . Moreover, Sandoval received a previous strike when the district court dismissed as frivolous a prior 42 U.S.C. § 1983 complaint filed by Sandoval. See .

Therefore, Sandoval has accumulated at least three strikes under 28 U.S.C. § 1915(g), and he is BARRED from proceeding in forma pauperis in any civil action or appeal filed while he is incarcerated or detained in any facility unless he shows that he is under imminent danger of serious physical injury. See 28 U.S.C. § 1915(g).

Sandoval‘s motion for appointment of counsel is DENIED. See

Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982).

APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR IMPOSED; MOTION DENIED.

Notes

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.