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this opinion should not be published and is not precedent except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

March 17, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-20964

Summary Calendar

SIE JOE LANN

Plaintiff - Appellant

v.

JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL

JUSTICE, INSTITUTIONAL DIVISION, D CHANCE; G MORH; JD 

SEIGLE; RAY GOODRUM; JOE S FERNALD

Defendants - Appellees

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

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:03-CV-2073

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

Before KING, WIENER and DeMOSS, Circuit Judges.

PER CURIAM:*

Sie Joe Lann appeals the dismissal of his 28 U.S.C. § 1983

civil rights action as frivolous under 28 U.S.C. § 1915A. We

review dismissals under § 1915A de novo. Ruiz v. United States,

160 F.3d 273, 275 (5th Cir. 1998). 

On appeal, Lann argues that prison officials denied him

access to the courts by confiscating his legal documents pursuant

to a policy that limits a prisoner’s storage space. Lann has
No. 04-20964

-2-

failed to establish, however, that the prison’s storage policy

actually prejudiced his ability to pursue a legal claim. See

Lewis v. Casey, 518 U.S. 343, 351 (1996); Christopher v. Harbury,

536 U.S. 403, 415 (2002). Thus, his claim fails. 

Lann argues for the first time on appeal that the defendants

violated their own regulations, his equal protection and Fourth

Amendment rights, and the Privileges and Immunities Clause by

their actions. A party may not raise an issue for the first time

on appeal merely because he believes that he might succeed on a

different theory of recovery. See Leverette v. Louisville Ladder

Co., 183 F.3d 339, 342 (5th Cir. 1999). We do not address these

arguments.

Lann argues that the district court erred in finding that he

had not shown a claim of retaliation by the defendants for his

questioning them as to his rights, which he terms petitioning for

redress of grievances. To state a claim, Lann must allege a

protected right and either produce direct evidence of a

retaliatory motive or allege a chronology of events from which

the court plausibly may infer a retaliatory motive. Woods v.

Smith, 60 F.3d 1161, 1164 (5th Cir. 1995). “[W]here internal

grievance procedures are available,” a prison has the authority

“to circumscribe the manner in which a grievance or criticism

right is exercised.” Freeman v. Tex. Dep’t of Crim. Justice, 369

F.3d 854, 864 (5th Cir. 2004) (allowing proscription of internal

circulation of petition within prison). “Prison officials may
No. 04-20964

-3-

legitimately punish inmates who verbally confront institutional

authority without running afoul of the First Amendment.” Id.

Questioning a prison officer as to his authority to enforce

prison regulations is therefore not a protected activity under

the First Amendment. Nor has Lann shown direct evidence of

retaliation or alleged a chronology of events from which we can

plausibly infer a retaliatory motive. 

Lann argues that the district judge was biased against him

and should be recused. An allegation of bias stemming from a

judge’s adverse ruling is not sufficient to support a finding of

bias under 28 U.S.C. § 455. See Liteky v. United States, 510

U.S. 540, 555 (1994). 

Lann’s appeal is without arguable merit and is dismissed as

frivolous. See 5th Cir. R. 42.2; Howard v. King, 707 F.2d 215,

219-20 (5th Cir. 1983). The district court’s dismissal of Lann’s

complaint as frivolous and this dismissal both count as strikes

under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d

383, 387-88 (5th Cir. 1996). Lann is warned that if he

accumulates a third strike, he may not proceed in forma pauperis

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 28 U.S.C. § 1915(g). 

APPEAL DISMISSED; SANCTION WARNING ISSUED