Moody v. Appleman, et al

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
June 24, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40158
Conference Calendar
STEVEN C. MOODY,
Plaintiff-Appellant,
versus
JOHN S. APPLEMAN; KATHY MCCOLLUM; B. RICHARD; E. RICHARDSON,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:00-CV-58
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Before DeMOSS, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Steven Moody, Texas prisoner # 809008, appeals the district
court’s dismissal of his civil rights suit as frivolous and for
failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(i) and
(ii). He argues, as he did in the district court, that the clerk
of the state court and deputy clerks denied him access to the
courts when they refused to file his state petition when he first
submitted it.

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No. 02-40158
-2-
To state a denial of access claim, the prisoner must
demonstrate that his position as a litigant has been prejudiced
by the defendants’ actions. McDonald v. Steward, 132 F.3d 225,
230-31 (5th Cir. 1998). The record and Moody’s allegations
demonstrate that he could not show how he was prejudiced by the
delayed filing of his petition in state court or that the
defendants were wrong to require Moody to file an affidavit
listing his prior suits. The district court’s dismissal of
Moody’s complaint was not error.
Further, Moody’s appellate arguments are without arguable
merit, and his appeal is dismissed as frivolous. See Howard v.
King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5TH CIR. R. 42.2. The
dismissal of his appeal as frivolous and the district court's
dismissal count as two strikes for purposes of 28 U.S.C.
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th
Cir. 1996). Moody is warned that if he accumulates three
strikes, he may not proceed IFP in any civil action or appeal
while he is incarcerated or detained in any facility unless he is
in imminent danger of serious physical injury. See id.; 28
U.S.C. § 1915(g).
Moody’s motions to expand the record with new evidence and
for the appointment of counsel are denied.
DISMISSED AS FRIVOLOUS; THREE-STRIKES WARNING ISSUED;
MOTIONS DENIED.

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