*Local Rule 47.5 provides: "The publication of opinions that

have no precedential value and merely decide particular cases on

the basis of well-settled principles of law imposes needless

expense on the public and burdens on the legal profession."

Pursuant to that Rule, the court has determined that this opinion

should not be published.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-20200

Summary Calendar

BILLY RAY JOHNSON,

Plaintiff-Appellant,

versus

K. HELMBOLD,

Defendant-Appellee.

Appeal from the United States District Court

For the Southern District of Texas

(CA-H-95-0124)

( July 31, 1995 )

Before POLITZ, Chief Judge, KING and STEWART, Circuit Judges.

PER CURIAM:*

Billy Ray Johnson appeals the dismissal under 28 U.S.C.

§ 1915(d) of his action alleging that a mailroom supervisor at the

Huntsville Unit of the Texas Department of Criminal Justice

violated his constitutional rights by opening a piece of his legal

mail. Johnson also appeals the imposition of a sanction of $20 for
 

1Brewer v. Wilkinson, 3 F.3d 816, 825 (5th Cir. 1993) ("[T]he

violation of the prison regulation requiring that a prisoner be

present when his incoming legal mail is opened and inspected is not

a violation of a prisoner's constitutional rights."), cert. denied,

114 S.Ct. 1081 (1994).

 

2Booker v. Koonce, 2 F.3d 114 (5th Cir. 1993) (setting forth

the legal standard for dismissal under section 1915(d)).

2

bringing the suit. We affirm.

In December of 1994 Johnson, a Texas prisoner, received notice

that he had two pieces of legal mail in the Huntsville Unit

mailroom. Upon retrieving the letters from K. Helmbold, the

mailroom supervisor, Johnson found that a letter from the Texas

Attorney General's office had been opened. Johnson sued, alleging

that Helmbold opened his private legal mail outside of his presence

thereby violating his rights under the first, fourth, and

fourteenth amendments. The district court dismissed Johnson's

claims as frivolous under section 1915(d) and imposed a $20

sanction because of Johnson's history of filing frivolous

complaints. Johnson timely appealed.

Johnson first contends that the district court erred in

finding his allegations frivolous as a matter of law. Assuming,

arguendo, that Helmbold violated Texas Department of Criminal

Justice rules governing inmate correspondence when she opened

Johnson's incoming legal mail, we have held that such an action

does not violate a prisoner's constitutional rights.1 Accordingly,

the district court did not err in finding that Johnson's

allegations lacked an arguable basis in law and fact.2

Johnson next contends that the district court violated his due
 

328 U.S.C. § 636(c)(1)(1988) (allowing reference of all

proceedings to a magistrate judge only upon the consent of all

parties).

 

4Johnson does not challenge the procedure by which the

sanctions were imposed and we therefore pretermit discussion of the

December 1, 1993 amendment to Fed.R.Civ.P. 11(c)(1)(B).

 

5Moody v. Baker, 857 F.2d 256, 257 (5th Cir.), cert. denied,

488 U.S. 985 (1988).

3

process rights when it dismissed his claim after Johnson had

consented to proceed before a magistrate judge under 28 U.S.C.

§ 636(c). Although Johnson consented to proceed before a

magistrate judge, the record reflects that Helmbold did not consent

and the action was never referred under section 636(c).3 The suit

was properly before the district court and its ruling did not

violate Johnson's rights.

Finally, Johnson complains that in imposing the monetary

sanction the district court attributed seven prior actions to

Johnson that he did not file, and impermissibly relied upon those

actions in assessing the need for sanctions.4 Excluding from

consideration those seven actions, all of which were filed prior to

1981, the record reflects that Johnson has filed at least ten pro

se, in forma pauperis actions since January of 1994. Four have

been dismissed under section 1915(d) as frivolous; the rest still

pend. Albeit reluctant to impose sanctions without an express

prior warning that such sanctions are forthcoming, we have

permitted the imposition of sanctions without warning when the

complaint before the court was "the latest in a string of § 1983

filings, nearly all of which were dismissed as frivolous."5 The
 

6Childs v. State Farm Mut. Auto. Ins. Co., 29 F.3d 1018 (5th

Cir. 1994) (noting that standard of review for the imposition of

sanctions is abuse of discretion).

4

instant appeal involves Johnson's fifth consecutive section 1915(d)

dismissal with no countervailing successes. Under these

circumstances, we conclude that the district court's imposition of

sanctions was not an abuse of its discretion.6

AFFIRMED.