### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 13-40476 Summary Calendar

KIRK MARTIN BAGBY, Plaintiff-Appellant

v. JERRY R. KARRIKER, III; R ICK THALER; WARDEN TODD F O X W ORTH; FRANCINE SOUKUP; REGINA OLIVER, Defendants-Appellees

Appeals from the United States District Court for the Eastern District of Texas USDC No. 6:12-CV-266

Before KING, DAVIS, and ELROD, Circuit Judges. PER CURIAM: * Kirk Martin Bagby, Te x a s prisoner # 1582340, seeks leave to proceed in forma pauperis (IFP) t o appeal the d i s t r i c t court’s dismissal of his 42 U.S.C. § 1983 complaint a gainst Sergeant Jerry R. Karriker, I I I , TDCJ-CID Director Rick Thaler, W arden Todd Foxworth , O fficer Francine S oukup, and counsel substitute Regina Oliver. The district court certified t hat a n appeal would not be taken in good faith. By moving i n this co u r t f o r I FP status, Bagby is

U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D Aug ust 29, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 13-40476 Document: 00512357789 Page: 1 Date Filed: 08/29/2013No. 13-40476

challenging that certification. See Baugh v. Taylor , 117 F.3d 197, 202 ( 5th Cir. 1997). Our inquiry into whether the appeal is taken in good faith “is limited to whether the appeal i nvolves legal points arguable on their m erits (and therefore not frivolous).” Howard v. King , 707 F.2d 215, 22 0 ( 5 t h C i r . 1983) (internal quotation marks and citation omitted). Bagby has abandoned, by f a i l ing to brief, h is c laims against Soukup, Fo x w orth, and Thaler. S ee Y o h ey v . Co llin s , 9 8 5 F

. 2 d 2 2 2 , 2 2 4 -2 5 (5 th C ir. 1 9 9 3 ). Additionally, he has not shown that he will raise a nonfrivolous issue with regard to t he dismissal as f rivolous and f

o r failure to state a claim of his claim against Oliver. See Geiger v. Jowers , 404 F.3d 371, 373 ( 5th Ci r . 2 0 05). B a g by cannot m aintain a § 1983 action against Oliver b ased on her ac t i o n s a s his counsel s ubstitute. Se e B a n uelos v . McFarland , 4 1 F.3d 232, 2 34 (5th Cir. 1995). Further, o ur de novo review of the record shows n o potential nonfrivolous issue with regard to the dismissal as f rivolous and f

or failure t o s tate a claim of Bagby’s f

alse d isciplinary claim against Karriker. See Geiger , 404 F.3d at 373. A pris o n e r ’ s p rotected liberty interests are “generally limited to freedom from restraint which, while not e x c eeding the sentence i n such an unexpected manner

as t o give rise to protection by the Due Process Clause o f i ts own f orce . . . nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of p rison life.” Sandin v. Conner , 515 U.S. 472, 484 (1995). Bagby’s cell and commissary restrictions and his red u c t i o n in classification status do not i mplicate the Due Process Clause. See id. ; Luken v. Scott, 71 F.3d 192, 1 9 3 ( 5 th C ir. 1995). Bagby may not o btain relief for those elements o f his punishment. Because Bagby was i neligible f or re l e ase on mandatory supervision, the district c o urt did not err in finding that Bagby failed to s t ate a due process claim w ith respect to t he loss o f his good-time c redits. See Arnold v. Cockrell , 306 F.3d 2 77, 278-79 ( 5th Cir. 2002). Although Bagby, who is serving a s entence f

or r obbery, is eligible for parole; see T E X

. G O V ’ T C O D E A N N

.

2 Case: 13-40476 Document: 00512357789 Page: 2 Date Filed: 08/29/2013No. 13-40476

§ 508.145, he d oes no t h a v e a constitutionally protected liberty interest in obtaining parole. See Madison v. Parker , 104 F.3d 765, 768 (5th Cir.1997). Lastly, we find n o error in the g r ant o f summary judgment in favor of Karrik e r on Bagby’s excessive force claim. See Dillon v. Rogers , 596 F.3d 260, 266 (5th Cir. 2010). T he summary judgment evidence presented below demonstrates that Bagby f ailed to submit a Step Two g rievance complaining of the u se of force. Thus, the claim was not properly exhausted. S e e Johnson v. Johnson , 385 F.3d 503, 515 (5th Cir. 2004). B a gby’s appeal is without arguable merit and is thus frivolous. S e e Howard , 707 F.2d at 219-2 0

. Because t he a ppeal is frivolous, it is dismissed. See 5 T H C I R

. R

. 42.2. Bagby’s motion for appointment of counsel is denied. The dismissal of Bagby’s a ppeal counts as a strike for pu r p o s e s of 28 U.S.C. § 1915(g)

. S e e Adepegba v. Hammons , 103 F.3d 383, 387-88 (5th Cir. 1996). Bagby previously a ccumulated two s trikes and has n ow, t h erefore, accumulated at least three strike s . S e e Bagby v. Wichita Falls County Courthouse, 323 F. App’x 389, 389 (5th Cir. 2009). Accordingly, he is bar r e d from proceeding IFP in any civil action or appeal filed while he is incarcerated

or detained in any facili t y unless he “is under imminent danger o f serious physical injury.” § 1915(g). IFP MOTION DENIED; APPEAL DISMISSED; MOTION FOR APPOINTMENT OF COUNSEL DENIED; § 1915(g) BAR IMPOSED.

3 Case: 13-40476 Document: 00512357789 Page: 3 Date Filed: 08/29/2013