* 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should not be published and is not precedent except under the limited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. 08-60210

Summary Calendar

DAVID WEATHERSPOON

Plaintiff-Appellant

v.

JOHN D FERGUSON, President, CCA; CHRISTOPHER B EPPS,

COMMISSIONER, MISSISSIPPI DEPARTMENT OF CORRECTIONS;

RAYMOND BYRD, Warden for CCA; KIMBERLY KENT ROKASKY, Mailroom

Clerk for CCA

Defendants-Appellees

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 4:08-CV-3

Before KING, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

David Weatherspoon, Mississippi prisoner # 39891, moves for leave to

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

his 42 U.S.C. § 1983 complaint for failure to state a claim. In his complaint,

Weatherspoon alleged that various officials affiliated with the Corrections

Corporation of America-Delta Correctional Facility and the Mississippi

United States Court of Appeals

Fifth Circuit

F I L E D

October 27, 2008

Charles R. Fulbruge III

Clerk
No. 08-60210

2

Department of Corrections tampered with his mail. Weatherspoon specifically

alleged that his legal mail, which was sealed and properly stamped, was

improperly returned to him on the ground that it had not been processed in

accordance with prison regulations. Weatherspoon argued that the defendants’

actions denied him access to the courts and violated the Fourth Amendment.

By moving for leave to proceed IFP, Weatherspoon is challenging the

district court’s certification that his appeal was not taken in good faith. See

Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); 28 U.S.C. § 1915(a)(3); FED.

R. APP. P. 24(a)(3). For the reasons detailed below, Weatherspoon’s motion for

IFP is GRANTED.

A prison official's interference with a prisoner's legal mail may violate the

prisoner's constitutional right of access to the courts. Brewer v. Wilkinson, 3

F.3d 816, 820 (5th Cir. 1993). However, to state a claim based on delay or

interference with the mail, a plaintiff must show actual injury. See Ruiz v.

United States, 160 F.3d 273, 275 (5th Cir. 1998). In this context, an inmate

shows an actual injury by establishing that “his position as a litigant was

prejudiced” due to the disputed acts. Walker v. Navarro County Jail, 4 F.3d 410,

413 (5th Cir. 1993).

Weatherspoon has not alleged that he suffered any actual prejudice due

to the defendants’ purported interference with his mail. His claim that he was

denied access to the courts therefore does not involve legal points arguable on

their merits. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal

quotations and citations omitted). Accordingly, this portion of the district court’s

judgment is AFFIRMED.

However, although Weatherspoon alleged in his § 1983 complaintthatthe

defendants’ actions interfered with his rightto be free from an illegal search and

seizure, the district court failed to address whether Weatherspoon had stated a

claim under the Fourth Amendment. Consequently, the district court’s

conclusion that Weatherspoon’s complaint did not form a basis for relief, and its
No. 08-60210

3

resulting certification that Weatherspoon’s motion to proceed IFP on appeal was

not taken in good faith, were erroneous. Whether the facts ultimately establish

a Fourth Amendment claim is not a question to be answered at this stage of the

proceedings. See Howard, 707 F.2d at 220. The district court’s dismissal of

Weatherspoon’s Fourth Amendment claim is VACATED and REMANDED for

further proceedings.

MOTION FOR IFP GRANTED; AFFIRMED IN PART; VACATED AND

REMANDED IN PART.