* 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that this opinion should not be published and is not precedent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. 98-60666

Summary Calendar

 

VICTOR HURNS,

Plaintiff-Appellant,

versus

JAMES V. ANDERSON, SUPERINTENDENT, 

MISSISSIPPI STATE PENITENTIARY; 

WALTER BOOKER; ROBERT ARMSTRONG; 

GENE CROCKETT; BOBBY BUTLER; 

ANN L. LEE; EARL JACKSON,

Defendants-Appellees.

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

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 4:98-CV-106-B-D

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

November 12, 1999

Before POLITZ, WIENER, and DENNIS, Circuit Judges.

PER CURIAM:*

Victor Hurns, Mississippi prisoner # 09848, has filed an

application for leave to proceed in forma pauperis (IFP) on

appeal, following the district court’s dismissal of his 42 U.S.C.

§ 1983 complaint. By moving for IFP, Hurns is challenging the

district court’s certification that IFP should not be granted on

appeal because his appeal presents no nonfrivolous issues. See

Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
No. 98-60666

-2-

Hurns has not adequately briefed the substance of the

majority of his alleged constitutional violations. In his motion

to proceed IFP filed on November 24, 1998, Hurns attempts to show

that his claims are not frivolous by adopting his objections to

the magistrate judge’s report. This court does not consider

incorporation of arguments contained in other pleadings. Issues

must be argued in the body of the brief. Yohey v. Collins, 985

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

In his supplement to his motion for IFP filed on August 3,

1999, Hurns provides a minimally adequate briefing of his claim

that he was denied a fair and impartial review during his

classification proceedings after having been held in segregation

for more than one year. He cites this court’s unpublished

opinion in Phillips v. Puckett, No. 98-60010 (5th Cir. Mar. 15,

1999). Hurns argues that in light of Phillips, it is plain that

the district court erred in its decision that his claim was

frivolous and that his appeal would not be frivolous.

Hurns’ case is distinguishable from Phillips. Hurns has not

alleged and has not provided any evidence that the administration 

dictated to and imposed its will upon the classification

committee, thus mandating the result that he would be maintained

in his current status. There is nothing in the classification

committee’s reasons to suggest that they based their decision on

anything more than a recommendation, not a mandate, by the

administration. Hurns was not placed in administrative

segregation based on the money-order scam like Phillips. He was

placed in his current status based on an assault by members of
No. 98-60666

-3-

the Black Gangster Disciples, of which Hurns was identified as a

leader. Even if Hurns did have a liberty interest in impartial

periodic review, he has not alleged facts to show that his right

to such was violated. His claim has no arguable basis in fact,

and the district court did not abuse its discretion in dismissing

his action as frivolous, nor did it err in denying IFP. Siglar,

112 F.3d at 193.

Accordingly, we uphold the district court’s order certifying

that the appeal presents no nonfrivolous issues. Hurns’ request

for IFP status is DENIED, and his appeal is DISMISSED as

frivolous. See Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2.

Hurns’ has two strikes for purposes of 28 U.S.C. § 1915(g).

See Hurns v. Parker, No. 98-60006 (5th Cir. Dec. 2, 1998). The

district court and this court dismissed that action and appeal as

frivolous. See Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir.

1996) (“[D]ismissals as frivolous in the district courts or the

court of appeals count [as strikes] for the purposes of

[§ 1915(g)].”). The dismissal of this appeal as frivolous counts

as Hurns’ fourth strike under § 1915(g). We inform Hurns that

having accumulated three strikes, he may not 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. See 28 U.S.C. § 1915(g).

IFP DENIED; APPEAL DISMISSED AS FRIVOLOUS.