* 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that this opinion should not be published and is not precedent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. 01-10735

Conference Calendar

 

BOBBY GENE BURGHART,

Plaintiff-Appellant,

versus

WAYNE SCOTT, Director, Executive Director TDCJ;

SANDY LANSFORD, Director’s Review Committee Coordinator;

LINDA R. SHORT, Administrative Tech. III; KARAN A. SWAN,

Administrative Tech. I; PAMELA J. LOWE, Clerk III;

PATRICIA M. PARKS, Clerk III; IRENE POLENDO, Clerk III;

UNKNOWN DEFENDANTS, Members of TDCJ Director’s Review

Committee serving on committee from 9/4/99 and

continuing forward,

Defendants-Appellees.

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

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 2:00-CV-38

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

December 12, 2001

Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

Bobby Gene Burghart, Texas prisoner # 778465, 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 can

be granted. Burghart reasserts his claims that the prison’s mail

room personnel employed a “discriminatory” censorship practice,

in violation of his First Amendment rights, and that the prison’s
No. 01-10735

-2-

policy of destroying pages that have been clipped from censored

magazines without giving him the opportunity to send the pages to

an outside location violates his Fifth and Fourteenth Amendment

rights to due process.

As the magistrate judge and district court properly

determined, Burghart’s argument that his constitutional rights

were violated because prison officials allowed him to receive

certain magazines containing pictures of women engaging in

homosexual activity but then censored others for the same conduct

is foreclosed by our decision in Thompson v. Patteson, 985 F.2d

202 (5th Cir. 1993). Burghart does not argue that Thompson is

inapposite.

As to Burghart’s due process argument, the magistrate judge

correctly noted that the prison’s rules allow an inmate the

opportunity to send an entire censored publication out of the

facility at his expense. Burghart does not demonstrate how his

due process argument has any merit in light of the prison’s

rules. Furthermore, assuming that Burghart could allege a due

process claim for the deprivation of his property, a

postdeprivation tort cause of action in state law is sufficient

to satisfy the requirements of due process. Murphy v. Collins,

26 F.3d 541, 543 (5th Cir. 1994). Texas has adequate

postdeprivation remedies for the confiscation of prisoner

property, such as a tort action for conversion. Id. at 543.

For the first time on appeal, Burghart contends that his due

process rights were violated because he was not allowed to appeal

a censorship decision due to the fact that another inmate
No. 01-10735

-3-

previously had appealed the decision to the Director’s Review

Committee, which upheld the decision. Because Burghart did not

raise this claim in the district court, we will not review it on

appeal. See Leverette v. Louisville Ladder Co., 183 F.3d 339,

342 (5th Cir. 1999), cert. denied, 528 U.S. 1138 (2000). 

Burghart has failed to address his claim that he should be

afforded a level of review beyond the Director’s Review

Committee. Therefore, this issue is deemed abandoned. Yohey v.

Collins, 985 F.2d 222, 225 (5th Cir. 1993).

This 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 and the district court’s dismissal

of Burghart’s complaint each count as a “strike” for purposes of

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

387-88 (5th Cir. 1996). Burghart therefore has two “strikes”

under 28 U.S.C. § 1915(g). We caution Burghart that once he

accumulates three strikes, he may not 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).

Burghart also requests appointment of counsel on appeal. He

has failed to show that his case involves exceptional

circumstances requiring appointment. See Ulmer v. Chancellor,

691 F.2d 209, 212 (5th Cir. 1982). Consequently, his motion is

DENIED.

APPEAL DISMISSED; SANCTIONS WARNING ISSUED; MOTION DENIED.