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this opinion should not be published and is not precedent except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

May 15, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-60601

Summary Calendar

SIDNEY STALLWORTH 

Plaintiff - Appellant 

v. 

LARRY GREER, UNKNOWN THOMAS, UNKNOWN BONNER, UNKNOWN EPPS

Defendants - Appellees

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

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 4:05-CV-127

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

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

PER CURIAM:*

Sidney Stallworth, Mississippi prisoner # 45129, filed a

42 U.S.C. § 1983 complaint alleging that he was denied his due

process rights in connection with a Rule Violation Report (RVR)

for which he received 20 days of isolated lockdown and a decrease

in custody status. The district court dismissed the complaint

for failure to state a claim because there was no liberty

interest involved and thus no constitutional violation. 

Stallworth timely appealed the district court’s dismissal.
No. 06-60601

-2-

Stallworth contends that the district court used an

incorrect legal standard in determining that he had failed to

state a claim. He does not, however, explain what standard

should have been used. The district court correctly found that

Stallworth failed to state a claim of a due process violation

with regard to the RVR. See Sandin v. Conner, 515 U.S. 471, 486

(1995); Neals v. Norwood, 59 F.3d 530, 533 (5th Cir. 1995).

Stallworth argues that he stated a claim of retaliation

against the prison’s law library clerk. Stallworth’s allegation

in the district court was that the library clerk was

discriminating against him. We do not consider this new claim

raised for the first time on appeal. See Leverette v. Louisville

Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999). Stallworth did

allege retaliation by the prison commissioner, but he did not

state a claim of a constitutional violation as he did not allege

any facts showing a retaliatory motive on the part of the

commissioner. See Moody v. Baker, 857 F.2d 256, 258 (5th Cir.

1988); Brinkmann v. Johnston, 793 F.2d 111, 113 (5th Cir. 1986). 

Nor did Stallworth carry his burden of persuasion when he sought

global injunctive relief from retaliation by prison officials. 

See PCI Transp., Inc. v. Fort Worth & Western R. R. Co., 418 F.3d

535, 545 (5th Cir. 2005); Lakedreams v. Taylor, 932 F.2d 1103,

1107 (5th Cir. 1991).

Stallworth asserts that the prison commissioner’s response

to Stallworth’s grievances amounted to an Eighth Amendment
No. 06-60601

-3-

violation. Stallworth’s allegations did not state such a

violation by the commissioner, however, as he did not allege

conditions that would satisfy the objective component of an

Eighth Amendment violation. See Palmer v. Johnson, 193 F.3d 346,

352 (5th Cir. 1999); Novak v. Beto, 452 F.2d 661, 665 (5th Cir.

1971). We decline to consider any Eighth Amendment claims that

Stallworth raises for the first time on appeal against any other

defendants. See Leverette, 183 F.3d at 342.

Stallworth argues that the actions taken by the defendants

against him violate his rights under the Americans with

Disabilities Act (ADA). Stallworth has not established an ADA

violation, however, because he has failed to show that the fact

that he is housed in a special needs facility renders him

disabled within the meaning of the ADA. See Lightbourn v. County

of El Paso, Texas, 118 F.3d 421, 428 (5th Cir. 1997).

Finally, Stallworth maintains that the district court erred

in failing to conduct a Spears v. McCotter, 766 F.2d 179 (5th

Cir. 1985), hearing prior to dismissal. Stallworth does not

state what additional facts would have been brought out during a

Spears hearing. See Eason v. Thaler, 14 F.3d 8, 10 (5th Cir.

1994). Thus, he has not shown that the district court abused its

discretion in this regard.

We have reviewed the record and Stallworth’s brief on

appeal, and we conclude that the district court did not err in

dismissing Stallworth’s complaint for failure to state a claim. 
No. 06-60601

-4-

See § 1915(e)(2)(B)(ii); Harris v. Hegmann, 198 F.3d 153, 156

(5th Cir. 1999); Black v. Warren, 134 F.3d 732, 733-34 (5th Cir.

1998). We therefore affirm the judgment of the district court.

The district court’s dismissal of Stallworth’s complaint for

failure to state a claim counts as a strike under 28 U.S.C.

§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th

Cir. 1996). Stallworth has had one other civil action dismissed

for failure to state a claim. See Stallworth v. Johnson,

No. 4:00-CV-299 (N.D. Miss. July 19, 2001). Stallworth is

cautioned that if he accumulates three strikes under § 1915(g),

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 § 1915(g).

AFFIRMED; SANCTION WARNING ISSUED.