Bernstine v. Rhodes, 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this opinion should not be published and is not precedent except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
April 11, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-30358
Conference Calendar
DEREK BERNSTINE,
Plaintiff-Appellant,
versus
MICHAEL RHODES, NIKKI MCCOY; HERMAN WILLIAMS,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:04-CV-1743
--------------------
Before JONES, Chief Judge, and JOLLY and DAVIS, Circuit Judges.
PER CURIAM:*
Derek Bernstine, Louisiana prisoner # 416283, appeals the
dismissal of his civil rights suit filed pursuant to 42 U.S.C.
§ 1983 as frivolous and for failure to state a claim under
28 U.S.C. § 1915(e). Bernstine argues that his due process
rights were violated when he was found guilty by a disciplinary
board but later exonerated. These allegations, however, fail to
state a claim for a due process violation and are frivolous
because the punishment he received was not atypical and did not

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No. 05-30358
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affect the length of his confinement. See Sandin v. Conner, 515
U.S. 472, 484 (1995); Orellana v. Kyle, 65 F.3d 29, 31-32 (5th
Cir. 1995). Nor do his complaints about his placement in
administrative segregation and the loss of recreation state a
claim for cruel and unusual punishment in violation of the Eighth
Amendment. See Herman v. Holiday, 238 F.3d 660, 664 (5th Cir.
2001).
Bernstine’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 dismissal of this appeal as frivolous
counts as a strike under 28 U.S.C. § 1915(g), as does the
district court’s dismissal of his complaint. See Adepegba v.
Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Bernstine is
warned that, if he accumulates three strikes under § 1915(g), he
will not be permitted to proceed in forma pauperis 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).
APPEAL DISMISSED; SANCTION WARNING ISSUED.

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