* 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that this opinion should not be published and is not precedent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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 98-20901

Conference Calendar

 

GENE E. HOWLAND,

Plaintiff-Appellant,

versus

READORE; COONS, Lieutenant; K.W. BERRY, Major;

NFN ROBINSON; J.C. STRICKLIN; D.R. FLANERY;

NFN TUNCHES; RANKIN, Sergeant; TOMMY B. THOMAS; 

NFN HANKA, Sergeant,

Defendants-Appellees.

- - - - - - - - - -

Appeal from the United States District Court

for the Southern District of Texas

USDC No. H-96-CV-1669

- - - - - - - - - -

August 22, 2000

Before KING, Chief Judge, and POLITZ and WIENER, Circuit Judges. 

PER CURIAM:*

Gene E. Howland, Texas state prisoner # 518149, proceeding

pro se and in forma pauperis (IFP), appeals the district court’s

dismissal of his 42 U.S.C. § 1983 complaint as frivolous and for

failure to state a claim upon which relief may be granted. See

28 U.S.C. § 1915(e)(2)(B). On appeal, Howland raises the

following arguments: (1) the district court caused him to lose

valuable rights, privileges, and immunities due to his lack of
No. 98-20901

-2-

knowledge or experience in the judicial process; (2) the district

court ruled on a motion to dismiss the defendants in their

official capacity, which Howland asserts was not presented to the

district court; (3) the district court exhibited prejudice and

bias against him; (4) the district court’s dismissal violated his

right to seek redress before a jury; (5) the defendants violated

his right to due process under the Fourteenth Amendment during a

prison disciplinary proceeding arising out of Howland’s failure

to wear prison-issued clothing; (6) the defendants filed false

disciplinary reports against Howland; (7) the defendants

conducted retaliatory searches and seizures; (8) the defendants

were negligent in their hiring and training of prison employees

who conducted the searches of Howland’s prison cell; and

(9) Howland was not afforded the opportunity to amend and remedy

the deficiencies in his complaint.

Howland’s argument that the district court caused him to

lose valuable rights, privileges, and immunities fails to

identify any specific error committed by the district court. 

Contrary to Howland’s second assertion, the defendants filed a

motion to dismiss the complaint against them in their official

capacity. The district court then properly ruled on the

defendants’ motion. Howland has failed to identify bias or

prejudice on the part of the district court. See Liteky v.

United States, 510 U.S. 540, 555 (1994)(holding that an adverse

ruling alone does not indicate bias). The district court

dismissed Howland’s complaint as frivolous and for failure to 
No. 98-20901

-3-

state a claim; therefore, he did not demonstrate that his

complaint was adequate to proceed to trial. See § 1915(e)(2)(B). 

The disciplinary proceedings instituted against Howland

resulted only in 15 days’ loss of commissary and visitation

privileges. As such, Howland has not stated cognizable due

process or false disciplinary claims. See Sandin v. Conner, 515

U.S. 472, 485 (1995); Berry v. Brady, 192 F.3d 504, 508 (5th Cir.

1999); Madison v. Parker, 104 F.3d 765, 768 (5th Cir. 1997). 

Although Howland contends that he has witnesses to testify

that the defendants hired other inmates to assault him, he does

not allege that any such assault occurred and has failed to

demonstrate an adverse retaliatory action. See McDonald v.

Steward, 132 F.3d 225, 231 (5th Cir. 1998). Howland has failed

to demonstrate that the searches of his prison cell were done in

retaliation for his filing grievances. See Block v. Rutherford,

468 U.S. 576, 590-91 (1984)(holding that random, irregular

searches of a prisoner’s cell are constitutional); Johnson v.

Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997)(conclusional

allegations are insufficient to establish a claim that defendants

acted with retaliatory intent). Because he has not demonstrated

that the prison cell searches were retaliatory in nature, Howland

has failed to demonstrate that the prison officials were

negligent in hiring, training, or supervising the defendants who

conducted the searches of Howland’s prison cell. 

Finally, Howland’s argument that he was not afforded the

opportunity to amend his deficient complaint is not true. After

it reviewed Howland’s original complaint, the district court
No. 98-20901

-4-

ordered him to file a more definite statement. Howland filed a

more definite statement, but still failed to state a meritorious

claim. See Macias v. Raul A. (Unknown), Badge No. 153, 23 F.3d

94, 98 n.5 (5th Cir. 1994)(noting that a plaintiff proceeding pro

se and IFP is not entitled to repeated opportunities to

articulate the factual basis of his claim).

The district court correctly determined that Howland’s

complaint was frivolous and failed to state a claim upon which

relief may be granted. Accordingly, the district court’s

judgment is AFFIRMED. See Adepegba v. Hammons, 103 F.3d 383, 387

(5th Cir. 1996)(affirmance of the district court’s dismissal as

frivolous counts as a single strike). Howland had accumulated

two strikes prior to filing the notice of appeal in this case. 

See Howland v. Thomas, No. H-96-1714 (S.D. Tex. Dec. 9, 1996);

Howland v. Dix, No. G-95-732 (S.D. Tex. Apr. 9, 1998). He now

has three strikes for purposes of § 1915 and is prohibited from

proceeding IFP in any civil action or appeal filed while he is

incarcerated or detained in any facility unless he is in imminent

danger of serious physical injury. See 28 U.S.C. § 1915(g);

Carson v. Johnson, 112 F.3d 818, 819 (5th Cir. 1997).

AFFIRMED; 28 U.S.C. § 1915(g) BAR IMPOSED.