* 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should not be published and is not precedent except under the limited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. 07-10429

Conference Calendar

HARVEY LEROY SOSSAMON, III

Plaintiff-Appellant

v.

ASSISTANT WARDEN CARY J COOK, Assistant Warden; THOMAS P

DRIVER, Lieutenant Security; T RODDY, Administrative Assistant

Defendants-Appellees

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 1:05-CV-221

Before KING, WIENER, and ELROD, Circuit Judges. 

PER CURIAM:*

Harvey Leroy Sossamon, III, Texas prisoner # 1120297, has applied for

leave to proceed in forma pauperis (IFP) in this appeal from the dismissal as

frivolous of his civil rights complaint, in which he asserted that the appellees

violated his rights under the First and Fourteenth Amendments in connection

with a disciplinary conviction of being out of place. 

United States Court of Appeals

Fifth Circuit

F I L E D

February 20, 2008

Charles R. Fulbruge III

Clerk
No. 07-10429

1 42 U.S.C. § 2000cc et seq.

2

Sossamon’s IFP motion is construed as a challenge of the district court’s

certification decision. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).

“Under 28 U.S.C. § 1915(a), a federal court may refuse to certify an appeal for

in forma pauperis status if it is not taken in good faith.” Howard v. King, 707

F.2d 215, 219-20 (5th Cir. 1983). The 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).” Id. at 220 (quotation

marks omitted). 

Sossamon contends that he was entitled to receive the procedural

protections of Wolff v. McDonnell, 418 U.S. 539 (1974), and that the magistrate

judge erred in dismissing the complaint as frivolous without giving him an

opportunity to conduct discovery. These contentions are without merit.

A district court must dismiss a complaint that it determines to be

frivolous. § 1915(e)(2)(B)(i). Sossamon’s punishment was limited to 15 days of

commissary and cell restrictions. Such punishments do not give rise to a

constitutionally protected liberty interest. See Sandin v. Conner, 515 U.S. 472,

483-84 (1995); Madison v. Parker, 104 F.3d 765, 767-68 (5th Cir. 1997). No facts

could have been developed through discovery that could have overcome this fatal

flaw in Sossamon’s due process claim. 

Sossamon has failed to provide in his IFP motion any legal or factual

analysis of the question whether the defendants violated his rights under the

Religious Land Use and Institutionalized Persons Act.1 Accordingly, the issue

is waived. See Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 260 n.9

(5th Cir. 1995). 

The motion for leave to proceed IFP on appeal is denied. Sossamon’s

appeal is without arguable merit and is dismissed as frivolous. See 5TH CIR.

R.42.2; Howard, 707 F.2d at 219-20. The district court’s dismissal of Sossamon’s
No. 07-10429

3

complaint as frivolous and this court’s dismissal of Sossamon’s appeal both count

as strikes for purposes of § 1915(g). See Adepegba v. Hammons, 103 F.3d 383,

387-88 (5th Cir. 1996). We caution Sossamon that if he accumulates three

strikes, he will not be permitted to 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. See § 1915(g).

IFP DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED.