Lynn v. Allen, 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that this opinion should not be published and is not precedent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
March 16, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-41622
Summary Calendar
JAMES GREGORY LYNN,
Plaintiff-Appellant,
versus
TRACEY P. ALLEN, Case Manager III; JODY
HATCH, Captain; MICHAEL DABNEY, Captain;
LEN FOXWORTH, Substitute Counselor;
CLARENCE MOSLEY, Assistant Warden,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:03-CV-538
--------------------
Before JOLLY, WIENER, and PICKERING, Circuit Judges.
PER CURIAM:*
James Gregory Lynn, Texas prisoner # 636695, appeals the
district court’s dismissal of his civil rights action as
frivolous and for failure to state a claim. He moves for this
court to grant him a restraining order; this motion is DENIED.
See Greene v. Fair, 314 F.2d 200, 201 (5th Cir. 1963).
Lynn asserts that he was denied due process when he was
placed in administrative segregation prior to a hearing on a

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No. 03-41622
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disciplinary charge for possession of a weapon and during the
hearing itself. Because Lynn has no interest in his custodial
classification, his prehearing detention does not violation due
process. Harper v. Showers, 174 F.3d 716, 719 (5th Cir. 1999);
Whitley v. Hunt, 158 F.3d 882, 889 (5th Cir. 1998).
Lynn also asserts that he was denied due process at his
disciplinary hearing and that there was no evidence to support
his disciplinary conviction. He is not entitled to relief on
these grounds because he has not established that his
disciplinary conviction has been overturned or vacated. Edwards
v. Balisok, 520 U.S. 641, 648-49 (1997).
Lynn’s appeal is without arguable merit and is thus
frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983). Accordingly, we DISMISS Lynn’s appeal as frivolous. See
5TH CIR. R. 42.2. This dismissal of his appeal as frivolous and
the district court’s dismissal of his complaint as frivolous and
for failure to state a claim constitute two “strikes” for the
purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103
F.3d 383, 388 (5th Cir. 1996). If Lynn obtains three “strikes,”
he will not be able 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 28 U.S.C. § 1915(g).
APPEAL DISMISSED.

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