1 Specifically, Martin contends that his constitutional rights

have been violated because the prison has limited his recreation

and visitation time, restricted his ability to possess certain

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

97-41242

__________________

TIMOTHY P. MARTIN,

Plaintiff-Appellant,

versus

WAYNE SCOTT, Director, Texas Department

of Criminal Justice; TEXAS BOARD OF

CORRECTIONS; TEXAS DEPARTMENT OF

CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Defendants-Appellees.

______________________________________________

Appeal from the United States District Court for the

Southern District of Texas

______________________________________________

September 23, 1998

Before JOLLY, BARKSDALE and BENAVIDES, Circuit Judges.

PER CURIAM:

The plaintiff, Timothy P. Martin, is a Texas prisoner in

administrative segregation. In his section 1983 suit against the

Texas Department of Criminal Justice (TDCJ), the Texas Board of

Corrections, and TDCJ Director Wayne Scott, Martin challenges the

conditions of his administrative segregation on due process, equal

protection, and Eighth Amendment grounds.1 The magistrate
personal property, required him to wear a jumpsuit, denied him the

right to buy certain commissary items, denied him dessert with his

meals, required him to be handcuffed every time he left his cell,

and fed him Vita-Pro. 

2

reviewing Martin’s complaint determined that it was frivolous and

dismissed it pursuant to 28 U.S.C. § 1915A.

On appeal, Martin claims that section 1915A does not apply to

prisoners who are not suing in forma pauperis (IFP). In addition,

Martin asserts that his complaint is not frivolous and that the

magistrate abused her discretion by denying his motion to amend his

complaint. We affirm.

Martin first contends that section 1915A does not apply to

prisoners who are not proceeding IFP. The plain language of this

section, however, indicates that it applies to any suit by a

prisoner against certain government officials or entities

regardless of whether that prisoner is or is not proceeding IFP.

In pertinent part, section 1915A provides:

(a) Screening.—The court shall review, before

docketing, if feasible or, in any event, as soon as

practicable after docketing, a complaint in a civil

action in which a prisoner seeks redress from a

government entity or officer or employee of a

governmental entity. 

(b) Grounds for dismissal.—On review, the court

shall identify cognizable claims or dismiss the

complaint, or any portion of the complaint, if the

complaint—

(1) is frivolous, malicious, or fails to state

a claim upon which relief may be granted; or

(2) seeks monetary relief from a defendant who

is immune from such relief.
2 Martin also appears to argue that section 1915A

unconstitutionally restricts his access to the federal courts. A

cursory review of this provision, however, reveals that it does not

restrict a prisoner’s access to the federal courts. Instead,

section 1915A merely institutes certain screening procedures once

a complaint is received by a district court. In this regard,

section 1915A is analogous to the version of 28 U.S.C. § 1915(d)

that was in effect before Congress enacted the Prison Litigation

Reform Act of 1995. In its prior form, section 1915(d) provided

that in an IFP case, a court “may dismiss the case if . . . [the

court is] satisfied that the action is frivolous or malicious.”

The function of section 1915A is also quite similar to the roles

played by Federal Rules of Civil Procedure 11 and 12(b)(6). Thus,

because these related screening devices are, or were, of

unquestionable constitutionality, Martin’s contention that section

1915A is unconstitutional is without merit.

3

28 U.S.C. § 1915A.2 Thus, as a suit by a prisoner against state

agencies and officers, Martin’s complaint is clearly within the

ambit of section 1915A and we join the Sixth and Tenth Circuits in

holding that this section applies even when a prisoner has paid the

required filing fee. See, e.g., Ricks v. Mackey, No. 97-3181, 1998

WL 133828 (10th Cir. Mar. 25, 1998); McGore v. Wrigglesworth, 114

F.3d 601, 608 (6th Cir. 1997). Accordingly, the magistrate did not

err by reviewing Martin’s complaint under section 1915A.

We now turn to the question of whether Martin’s complaint was

frivolous. In his complaint, Martin contends that the additional

restrictions imposed on those in administrative segregation violate

his due process and equal protection rights and constitute cruel

and unusual punishment. We review the magistrate’s determination

that Martin’s complaint is frivolous for an abuse of discretion.

Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997). A
4

complaint is frivolous if it lacks an arguable basis in law or

fact, such as when a prisoner alleges the violation of a legal

interest that does not exist. Id.

Martin’s due process claim is frivolous. In Pichardo v.

Kinker, 73 F.3d 612 (5th Cir. 1996), we held that “absent

extraordinary circumstances, administrative segregation as such,

being an incident to the ordinary life of a prisoner, will never be

a ground for a constitutional claim” because it “simply does not

constitute a deprivation of a constitutionally cognizable liberty

interest.” Id. at 612-13. Because Martin complains about

conditions that are far from “extraordinary,” he has not alleged

the violation of an existing due process interest. 

Martin’s equal protection claim is also frivolous. 

Significantly, Martin is not claiming that he is treated

differently than others in his level of administrative segregation.

Rather, he claims that he is treated differently than inmates in

other levels of administrative segregation. The comparison made by

Martin dooms his equal protection claim at the outset, for he does

not take the position, which would likely be frivolous, that

prisoners in different levels of administrative segregation are

similarly situated for the purposes of equal protection analysis.

Consequently, his complaint fails to implicate the Equal Protection

Clause.

 Like the other allegations in his complaint, Martin’s claim
5

that he was subjected to cruel and unusual punishment is frivolous.

The conditions complained of by Martin, including his contention

that he was subjected to cruel and unusual punishment when he

became ill after being fed Vita-Pro—a soy-based meat substitute—

simply do not rise to the level of cruel and unusual punishment.

See Helling v. McKinney, 509 U.S. 25, 36 (1993) (holding that the

inmate must show that the risk of which he complains is “so grave

that it violates contemporary standards of decency to expose anyone

unwillingly to such a risk”). 

Finally, Martin contends that the magistrate abused her

discretion when denying his motion to amend his complaint. This

motion, however, was filed after the magistrate had dismissed

Martin’s complaint and entered final judgment. Accordingly, the

magistrate lacked the power to grant this request and Martin could

only move for reconsideration of the judgment or appeal. Whitaker

v. City of Houston, 963 F.2d 831, 834 (5th Cir. 1992).

For the foregoing reasons, we AFFIRM the dismissal of Martin’s

complaint as frivolous.