Lodge v. LeBlanc, et al

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-30158
Summary Calendar

LEROY ANTOINE LODGE,

Plaintiff-Appellant

v.

JAMES M. LEBLANC; JAMES KEITH DEVILLE; STACEY FERGUSON;
LASALLE CORRECTIONS MANAGEMENT, L.L.C.,

Defendants-Appellees

Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:18-CV-1345

Before KING, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM:
*

Leroy Antoine Lodge, Louisiana prisoner # 00105750, proceeding pro se
and in forma pauperis (IFP), appeals the district court’s dismissal of his 42
U.S.C. § 1983 complaint for failure to state a claim upon which relief may be
granted under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915(A). To the extent that

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
April 3, 2020

Lyle W. Cayce
Clerk
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No. 19-30158
2
Lodge seeks a certificate of appealability (COA), a COA is not required to
appeal the dismissal of a § 1983 complaint.
In his complaint, Lodge alleged that he was wrongfully convicted in a
prison disciplinary action that resulted in a two-week suspension of his
telephone and commissary privileges and violated his right to due process
under the Fourteenth Amendment. Lodge’s punishment does not result in the
atypical and significant hardship contemplated by Sandin v. Conner, 515 U.S.
472, 484 (1995), and therefore does not implicate a protected liberty interest,
see Malchi v. Thaler, 211 F.3d 953, 958 (5th Cir. 2000). Because the
punishment does not involve a protected liberty interest, Lodge cannot raise a
plausible due process claim regarding his disciplinary proceeding. See
Wilkinson v. Austin, 545 U.S. 209, 221 (2005); see Meza v. Livingston, 607 F.3d
392, 399 (5th Cir. 2010) (holding that this court need not consider whether the
procedures that attended a punishment, which did not implicate a protected
liberty interest, were constitutionally sufficient). His allegation that the
handling of the disciplinary action violated state and prison regulations
likewise does not give rise to a constitutional violation under § 1983, see
Samford v. Dretke, 562 F.3d 674, 681 (5th Cir. 2009); Levitt v. Univ. of Tex. at
El Paso, 759 F.2d 1224, 1230 (5th Cir. 1985) (state law), or establish a due
process violation, see Jackson v. Cain, 864 F.2d 1235, 1251 (5th Cir. 1989).
For the first time, Lodge also alleges that the defendants violated his
rights under the First, Sixth, and Eighth Amendments. See Leverette v.
Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999) (declining to consider
claims raised for the first time on appeal). Even though these claims were not
raised in the district court, Lodge has not shown that he would be able to state
a plausible claim for relief as to any of these issues. Thus, while the district
court dismissed Lodge’s complaint without holding a hearing pursuant to
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No. 19-30158
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Spears v. McCotter, 766 F.2d 179, 181-82 (5th Cir. 1985), overruled on other
grounds by Neitzke v. Williams, 490 U.S. 319 (1989), or requesting a more
definite statement through a questionnaire, even if Lodge had been given an
opportunity to further develop his claims, the allegations, viewed in the light
most favorable to him, would not be sufficient to state a constitutional claim
that was at least plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009); see Eason v. Thaler, 14 F.3d 8, 9-10 (5th Cir. 1994). Accordingly, the
district court’s judgment is AFFIRMED.
The district court’s dismissal counts as a strike under 28 U.S.C.
§ 1915(g). See Coleman v. Tollefson, 135 S. Ct. 1759, 1763-64 (2015); Adepegba
v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Lodge has accrued at least
one other strike. See Lodge v. Tigner, No. 18-30821, 2019 WL 2417356 (5th
Cir. June 7, 2019) (affirming district court’s dismissal of Lodge’s IFP § 1983
complaint for failure to state a claim); Lodge v. Tigner, No. 1:18-CV-248, 2018
WL 3131039 (W.D. Tex. June 26, 2018) (district court judgment). Accordingly,
he is WARNED that if he accumulates three strikes under § 1915(g), 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 § 1915(g).
AFFIRMED; SANCTION WARNING IMPOSED.
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