* Pursuant to 5 TH 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH CIR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 fai lure to state a claim. In his complaint, Weatherspoon alleged that various officials affil iated 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 ClerkNo. 08-60210

2 Department ofCorrections 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 c hallenging 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); F ED
. R. A PP
. 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 tothedisputed acts. Walker v. NavarroCountyJail , 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 quotationsand citationsomitted). Accordingly, this portion of the district court’s judgment is AFFIRMED. However, although Weatherspoon alleged in his § 1983complaint that the defendants’ actions interfered with his right to be free from an illegal search and seizure, the district court failed toaddress whether Weatherspoon had stated a claim under the F ourth Amendment. Consequently, the district court’s conclusion that Weatherspoon’s complaint did not form a basis for relief, and itsNo. 08-60210

3 resulting certification thatWeatherspoon’s motion toproceed 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 ofthe 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.