* 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this opinion should not be published and is not precedent except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

FILED

February 23, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-60276

Conference Calendar

 

DENNIS LENOIR,

Plaintiff-Appellant,

versus

ETHEL CARLIZE; LISA ECHOLS; MICHAEL WILSON; CHRISTOPHER EPPS,

Defendants-Appellees.

--------------------

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 4:04-CV-10-P-D 

--------------------

Before BARKSDALE, GARZA, and STEWART, Circuit Judges. 

PER CURIAM:*

Dennis Lenoir, Mississippi state prisoner # 31073,

proceeding pro se, moves for leave to proceed in forma pauperis

(IFP) in an appeal of the district court’s final judgment that

dismissed his 42 U.S.C. § 1983 complaint for failure to state a

claim upon which relief may be granted. Lenoir’s IFP motion is a

challenge to the district court’s certification that his appeal

is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197,

202 (5th Cir. 1997). 
No. 04-60276

-2-

Lenoir contends that his inmate account has been improperly

debited by the defendants. Lenoir also argues in conclusory

fashion that his action is not frivolous “because of the liberty

interest and ‘statutory due process’ afforded through the

defendant(s) and their agency’s policies.” Id. at 4. 

Lenoir’s placement in solitary confinement, as alleged in

his complaint, does not violate his constitutional rights, see

Sandin v. Conner, 515 U.S. 472, 486 (1995), and his alleged

improper fine does not affect his freedom from restraint. 

Likewise, Lenoir’s alleged change in custodial classification

does not affect a protectable liberty interest. See Neals v.

Norwood, 59 F.3d 530, 533 (5th Cir. 1995). Because Lenoir did

not allege that he received any punishment that would implicate a

due process concern, neither the Due Process Clause nor prison

regulations afford Lenoir a protected liberty interest that

would entitle him to the procedural protections provided by Wolff

v. McDonnell, 418 U.S. 539, 556, 564-66 (1974). See Sandin,

515 U.S. at 487. 

Lenoir has not shown that the district court erred in

certifying that an appeal would not be taken in good faith.

He has not shown that he will present a nonfrivolous issue on

appeal. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). 

Accordingly, the motion for leave to proceed IFP is DENIED and

the appeal is DISMISSED as frivolous. See Baugh, 117 F.3d at 202

n.24; 5TH CIR. R. 42.2. 
No. 04-60276

-3-

The dismissal of this appeal and the district court’s

dismissal of Lenoir’s complaint for failure to state a claim

count as strikes under 28 U.S.C. § 1915(g). See Adepegba v.

Hammons, 103 F.3d 383, 387 (5th Cir. 1996). Lenoir is CAUTIONED

that if he accumulates three strikes under 28 U.S.C. § 1915(g),

he will not be able to 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. 

28 U.S.C. § 1915(g).

IFP MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING

ISSUED.