* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

June 21, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-41251

Conference Calendar

 

JESUS M. SANDOVAL,

Plaintiff-Appellant,

versus

RONALD FOX; ANTHONY HOLMES;

FREDERIC EDWARDS; MICHAEL GREHEM,

Defendants-Appellees.

--------------------

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 6:04-CV-136-JKG

--------------------

Before WIENER, BENAVIDES, and DENNIS, Circuit Judges. 

PER CURIAM:*

Jesus M. Sandoval, Texas prisoner # 599965, appeals the

magistrate judge’s dismissal as frivolous of his 42 U.S.C. § 1983

complaint alleging that prison supervisory personnel failed to

take action when guards improperly distributed prison mail. The

magistrate judge alternatively held that Sandoval failed to state

a claim upon which relief could be granted. He argues that the

defendant officers failed to properly train and supervise their
No. 04-41251

-2-

** Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).

subordinates in mail distribution policies and failed to

implement a policy to protect his constitutional rights.

Sandoval’s complaint and the testimony at the Spears**

hearing reflect that the supervisory officials monitored the mail

problem and instructed their subordinates to follow the policies

concerning the mail. Sandoval’s complaint does not reflect that

the defendants personally delivered his mail to other inmates or

implemented a mail delivery policy that was so deficient that it

reflected deliberate indifference to his right to receive his

mail. Thompson v. Upshur County, TX, 245 F.3d 447, 459 (5th Cir.

2001).

Nor has Sandoval shown that he suffered any constitutionally

cognizable harm. The mere failure to comply with prison rules

and regulations does not, without more, give rise to a

constitutional violation. Meyers v. Klevenhagen, 97 F.3d 91, 94

(5th Cir. 1996). Sandoval’s allegations and his testimony at the

Spears hearing do not reflect that he was deprived of his mail or

that he suffered any actual harm as a result of other inmates’

possessing his mail. Richardson v. McDonnell, 841 F.2d 120, 122

(5th Cir. 1988). Nor did Sandoval allege that the violation of

the mail policy precluded him from filing any specific legal

documents with the court. Walker v. Navarro County Jail, 4 F.3d

410, 413 (5th Cir. 1993).
No. 04-41251

-3-

Sandoval has not shown that the alleged acts of wrongdoing

resulted in any injury to his constitutional rights. The

magistrate judge did not abuse her discretion in dismissing the

complaint as frivolous. Further, the court accepts the

allegations and testimony as true and determines that the

complaint fails to state a claim upon which relief could be

granted. See Ashe v. Corley, 992 F.2d 540, 544 (5th Cir. 1993). 

Sandoval’s appeal is without arguable merit and is

frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.

1983). Because the appeal is frivolous, it is DISMISSED. See

5TH CIR. R. 42.2. The magistrate judge’s dismissal of Sandoval’s

complaint as frivolous and the dismissal of the instant appeal

as frivolous each count as a strike for purposes of the

three-strikes provision, 28 U.S.C. § 1915(g). See Adepegba v.

Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Moreover,

Sandoval received a previous strike when the district court

dismissed as frivolous a prior 42 U.S.C. § 1983 complaint filed

by Sandoval. See Sandoval v. Johns, No. 00-41276 (5th Cir.

June 29, 2001).

Therefore, Sandoval has accumulated at least three strikes

under 28 U.S.C. § 1915(g), and he is BARRED from proceeding in

forma pauperis in any civil action or appeal filed while he is

incarcerated or detained in any facility unless he shows that he

is under imminent danger of serious physical injury. See 28

U.S.C. § 1915(g). 
No. 04-41251

-4-

Sandoval’s motion for appointment of counsel is DENIED. 

See Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982). 

APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR IMPOSED; MOTION

DENIED.