IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-40254

Summary Calendar

ROBERT MCINTOSH,

Plaintiff-Appellant

v.

WARDEN RAYMOND THOMPSON; PROPERTY OFFICER D. WHITTEN;

LAW LIBRARY SUPERVISOR DAN GANNON; PROPERTY OFFICER JOHN

MARCUM; PHILLIP PENNINGTON; FORMER ASSISTANT WARDEN S.

SWIFT,

Defendants-Appellees

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 6:09-CV-444

Before WIENER, GARZA, and CLEMENT, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Robert McIntosh, Texas prisoner # 795107, appeals the

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

a claim on which relief may be granted. In his complaint, McIntosh alleged that

the defendants denied him meaningful access to the courts by confiscating and

destroying his legal property.

United States Court of Appeals

Fifth Circuit

F I L E D

February 24, 2012

Lyle W. Cayce

Clerk

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.

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McIntosh maintains that the district court erred by dismissing his claims

of denial of access to the courts. He contends that the defendants were required

by prison regulations to return his legal property within seven days after it was

confiscated and that their failure to return it violated his right of meaningful

access to the courts. He asserts that the defendants’ confiscation and

destruction of his legal property prevented him from amending his state habeas

corpus application and from filing a suit for breach of contract against a civil

attorney. He also insists that he was unable to amend his state habeas corpus

application to add a claim that his counsel was ineffective for not challenging

biased members of the jury pool who eventually were seated on the jury. And,

he contends that he was unable to file the breach of contract lawsuit because the

confiscated legal property included his contract with the attorney whom he

intended to sue.

At a hearing held pursuant to Spears v. McCotter, 766 F.2d 179 (5th Cir.

1985), McIntosh acknowledged that the issue surrounding the confiscation and

destruction of his legal property was that he had too much legal property. 

McIntosh’s allegations and testimony showed that 16 boxes of legal property

were destroyed, that he had several more boxes of legal property at the prison,

that he had sent five boxes of legal property to the district court, and that he had

sent an additional 400-500 pounds of legal property away from the prison. 

McIntosh alleged that the destroyed legal property included trial transcripts,

divorce transcripts, property records, and legal paperwork from old cases. 

Noting that prison regulations provided that there was no set limit on the

amount of legal property that an inmate could keep, he nevertheless

acknowledged that extra boxes for legal property would only be issued to a

prisoner if the legal property involved an active case. 

We have previously held that it seems “highly dubious that a facially

neutral prison storage space limitation of four cubic feet might in any way

restrict a prisoner’s exercise of constitutional rights, especially considering the

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obvious space limitations in a prison setting.” Long v. Collins, 917 F.2d 3, 4 (5th

Cir. 1990). As McIntosh’s allegations show that he was allowed to keep a large

amount of legal property and that the confiscation and destruction of some of his

legal property resulted from the large quantity of legal property he had, it is

“highly dubious” that McIntosh’s constitutional rights were restricted. Id.

Even if McIntosh’s constitutional rights had been restricted, he failed to

allege sufficiently that he suffered an injury in fact, which is required to state

a claim for denial of meaningful access to the courts. See Christopher v.

Harbury, 536 U.S. 403, 415 (2002). His assertion that he was prevented from

filing a lawsuit against a civil attorney is insufficient because the right of access

to the courts extends only to claims challenging a conviction, sentence, or

conditions of confinement. “Impairment of any other litigating capacity is simply

one of the incidental (and perfectly constitutional) consequences of conviction

and incarceration.” Lewis v. Casey, 518 U.S. 343, 355 (1996).

Even though McIntosh also alleged that the actions of the defendants

prevented him from amending his state habeas corpus application to add an

ineffective assistance of counsel claim, he did not sufficiently allege how the

confiscation and destruction of his legal property prevented him from amending

his state habeas corpus application. McIntosh acknowledged that he filed his

state habeas corpus application in 2002, and he alleged that he spent two to four

hours a day, five days a week, for four years researching the ineffective

assistance of counsel issue. McIntosh was able to raise the ineffective assistance

of counsel claim succinctly in the district court in the instant case without any

of the legal property that had been destroyed. Although McIntosh averred at the

Spears hearing that he needed his legal property because he knew nothing about

law and had to rely on other inmates to help him, he never explained how he

would have been able to amend his state habeas corpus application if he had his

legal property after it was first confiscated on October 16, 2007, given that he

was not able to amend it during the four years he allegedly spent working on the

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claim while his state habeas corpus application was pending. McIntosh’s

conclusional allegation thatthe confiscation and destruction of his legal property

prevented him from amending his state habeas corpus application was

insufficient to state a constitutional claim under § 1983. See Wilson v. Budney,

976 F.2d 957, 958 (5th Cir. 1992).

McIntosh did not plead “enough facts to state a claim to relief that [was]

plausible on its face.” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205

(5th Cir. 2007) (internal quotation marks and citation excluded). Accordingly,

the district court did not err in dismissing McIntosh’s complaint. See id.; 28

U.S.C. § 1915A(b).

The district court’s dismissal of McIntosh’s complaint counts as a strike for

purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 388

(5th Cir. 1996). We caution McIntosh that if he accumulates three such strikes,

he will not be allowed 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).

AFFIRMED; SANCTION WARNING ISSUED.

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