* 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should not be published and is not precedent except under the limited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. 08-20011

Conference Calendar

SIMON SMALLWOOD

Plaintiff-Appellant

v.

ALFONSO CASTILLO, Senior Warden; ASSISTANT WARDEN WORKING ON

UCC ON 4/6/07, Assistant Warden Richard A Gunnels or Steven N Rich;

MEMBERS OF UCC ON 4/6/07; ESTELLE UNIT’S GRIEVANCE

INVESTIGATOR

Defendants-Appellees

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:07-CV-2542

Before GARZA, CLEMENT, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Simon Smallwood, Texas prisoner # 552407, appeals the district court’s

dismissal of his complaint against employees of the Estelle Unit, alleging that

he was wrongfully placed in solitary confinement on the A-wing. Smallwood

does not challenge the district court’s dismissal of his claim that the conditions

of his confinement constituted cruel and unusual punishment in violation of the

United States Court of Appeals

Fifth Circuit

F I L E D

August 19, 2008

Charles R. Fulbruge III

Clerk
No. 08-20011

2

Eighth Amendment. Because Smallwood fails to brief this issue, it is deemed

abandoned. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993);

Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.

1987). 

Smallwood argues that he showed a deprivation of a cognizable liberty

interest and that his nonpunitive 14-day confinement to the A-wing without a

hearing violated his due process rights. He contends that he was wrongfully

placed in punitive confinement based on a lack of space in the prison for someone

with his medical conditions. In Hernandez v. Velasquez, 522 F.3d 556, 562-63

(5th Cir. 2008), this court found that a 14-month nonpunitive confinement in

lockdown without a prior hearing did not result in a deprivation of a cognizable

liberty interest. Thus, Smallwood’s 14-day confinement in the A-wing without

a prior hearing does not give rise to a claim for a deprivation of a cognizable

liberty interest. See Hernandez, 522 F.3d at 562-64. 

Smallwood also argues thatthe district court erred in dismissing his claim

of excessive force. Because Smallwood does not allege a de minimis injury, he

fails to present a basis for an Eighth Amendment claim of excessive force. See

Hudson v. McMillan, 503 U.S. 1, 6-7 (1992); Williams v. Bramer, 180 F.3d 699,

703 (5th Cir. 1999). 

Smallwood’s claim that the defendants denied him access to courts because

they destroyed or lost his grievance is without legal basis. See Walker v.

Navarro County Jail, 4 F.3d 410, 413 (5th Cir. 1993). To the extent that

Smallwood argues the defendants failed to comply with prison policies, his claim

is insufficient to establish a constitutional violation. See Jackson v. Cain, 864

F.2d 1235, 1251-52 (5th Cir. 1989). 

Smallwood’s appeal is without arguable merit and therefore 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 district court’s dismissal of

Smallwood’s complaint and the dismissal ofthis appeal as frivolous count as two
No. 08-20011

3

strikes for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d

383, 387-88 (5th Cir. 1996). Smallwood has one previous strike. See Smallwood

v. Director of Healthcare Services, No. 99-40672 (5th Cir. June 12, 2000).

Because Smallwood has now accumulated three strikes, 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 “is under imminent danger of

serious physical injury.” § 1915(g). 

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