* 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should not be published and is not precedent except under the limited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. 08-30221

Summary Calendar

ERNEST RANDAL COMEAUX,

Plaintiff–Appellant,

v.

RICHARD STALDER; VENETIA MICHAELS; WILLIAM HOLLENSHEAD;

EARL BENSON; JERRY GIFFORD; JAMEY MOORE; JOHN ROBINSON;

KIATONYA MAJOR; BECKY MOSS; SARA BILBERRY; LONNIE NAIL; RAY

ANDERSON,

Defendants–Appellees.

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 5:06-CV-367

Before KING, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

Ernest Randal Comeaux, Louisiana prisoner # 409283, seeks leave to

proceed in forma pauperis (IFP) on appeal from the district court’s dismissal of

his 42 U.S.C. § 1983 complaint. He has also filed a motion for judicial notice of

adjudicative facts. For the following reasons, we deny both motions and dismiss

Comeaux’s appeal.

United States Court of Appeals

Fifth Circuit

F I L E D

November 21, 2008

Charles R. Fulbruge III

Clerk
No. 08-30221

1Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); FED. R. APP. P. 24(a).

2See Baugh, 117 F.3d at 202. 

3Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal quotation

marks and citation omitted).

4See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). 

2

A district court may deny a motion for leave to appeal IFP by certifying

that the appeal is not taken in good faith and by providing written reasons for

the certification.1 A motion in this court to proceed IFP is construed as a

challenge to the district court’s certification.2 This court’s inquiry into whether

the appeal is taken in good faith “is limited to whether the appeal involves legal

points arguable on their merits (and therefore not frivolous).”3

Comeaux’s IFP motion fails to assert error in the district court’s judgment,

and we do not consider pleadings that litigants attempt to incorporate by

reference.4 We construe Comeaux’s motion for judicial notice liberally as a brief

in support of his IFP motion.

Comeaux’s claims revolve primarily around a disciplinary proceeding in

which he was convicted of violating former Rule 30k of the Louisiana

Disciplinary Rules and Procedures, which had been declared unconstitutional

by a district court. That infraction was the basis for a subsequent disciplinary

conviction, confinementin administrative segregation,the loss of privileges, and

the denial of admission into a prison inmate honor program.

Comeaux’s placement in administrative segregation while the infraction

was being investigated and the loss of commissary and recreation privileges do
No. 08-30221

5See Sandin v. Conner, 515 U.S. 472, 478, 486 (1995); Malchi v. Thaler,

211 F.3d 953, 958 (5th Cir. 2000). 

6See Bulger v. U.S. Bureau of Prisons, 65 F.3d 48, 49-50 (5th Cir. 1995).

7See Woods v. Smith, 60 F.3d 1161, 1164 (5th Cir. 1995); Thompson v.

Patteson, 985 F.2d 202, 207 (5th Cir.1993). 

8 See Geiger v. Jowers, 404 F.3d 371, 373-74 (5th Cir. 2005).

9512 U.S. 477 (1994).

10520 U.S. 641, 648-49 (1997).

11See Brinkmann v. Dallas County DeputySheriff Abner, 813F.2d 744, 748

(5th Cir. 1987).

3

not give rise to a constitutionally protected interest.5 Similarly, Comeaux has

notidentified a protected interestin participation in the inmate honor program.6

Comeaux’s conclusory assertions of retaliation and equal protection

violations with respect to the inmate honor program are insufficient and are

undermined by Comeaux’s later admission to the program in accordance with

program criteria once his disciplinary conviction was more than one year old.

He failed to allege facts or to demonstrate retaliatory or discriminatory motive.7

Comeaux’s challenges to the administrative remedy procedures used to process

his administrative grievances likewise fail to implicate a constitutional right.8

Comeaux does not address the dismissal of his claims regarding conditions

of confinement, the loss of certain money from food sales, or the dismissal of his

claims for monetary damages as barred by Heck v. Humphrey9 and Edwards v.

Balisok.

10 Accordingly, he has abandoned those claims.11

Comeaux has not shown that the district court’s certification was incorrect.

Thus, we deny Comeaux’s IFP motion. As the appeal is without arguable legal
No. 08-30221

12See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). 

13See 5TH CIR. R. 42.2. 

14See Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996). 

15See 28 U.S.C. § 1915(g).

4

merit, it is frivolous.12 Accordingly, we dismiss Comeaux’s appeal.13 The motion

to take judicial notice is denied as unnecessary. 

The dismissal of Comeaux’s appeal counts as a strike under 28 U.S.C.

§ 1915(g).14 Comeaux is warned that once he accumulates 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.15

MOTIONS DENIED; APPEAL DISMISSED.