* 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should not be published and is not precedent except under the limited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. 08-30156

Summary Calendar

JEROME TAPP

Plaintiff-Appellant

v.

TIM WILKERSEN; CORRECTIONS CORP OF AMERICA; ASSISTANT

WARDEN MORGAN; SARGEANT BRINSON; CAPTAIN KNIGHT; KENNETH

VERNON; CHIEF WALKER; CASE MANAGER SWAFFORD; T GLOVER;

LIEUTENANT ARMSTRONG

Defendants-Appellees

Appeal from the United States District Court

for the Western District of Louisiana 

USDC No. 1:07-CV-1804

Before DAVIS, BARKSDALE and PRADO, Circuit Judges.

PER CURIAM:*

Jerome Tapp, Louisiana prisoner # 119881, appeals the dismissal of his 42

U.S.C. § 1983 action which he filed asserting a denial of access-to-the-courts

claim. Jerome alleged that when he was placed in administrative segregation,

his legal documents were confiscated and never returned. He asserted that he

United States Court of Appeals

Fifth Circuit

F I L E D

October 27, 2008

Charles R. Fulbruge III

Clerk
No. 08-30156

2

requested the documents in order to prepare for a motion to reconsider sentence

that was eventually denied.

The district court dismissed Tapp’s claims as frivolous and for failure to

state a claim pursuantto 28 U.S.C. § 1915(e)(2)(B)(i) and (ii). This court reviews

the dismissal of a complaint pursuant to § 1915(e)(2)(B)(i) as frivolous for abuse

of discretion; however, a dismissal for failure to state a claim pursuant to

§ 1915(e)(2)(B)(ii) is reviewed “under the same de novo standard of review

applicable to dismissals pursuant to FED. R. CIV. P. 12(b)(6).” Geiger v. Jowers,

404 F.3d 371, 373 (2005); Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir. 1999).

Because the district court dismissed the claims pursuant to both subsections,

review should be de novo. See Geiger, 404 F.3d at 373. “To survive a Rule

12(b)(6) motion to dismiss, the plaintiff must plead enough facts to state a claim

to relief that is plausible on its face.” In re Katrina Canal Breaches Litigation,

495 F.3d 191, 205 (5th Cir. 2007) (internal quotation marks and citation

omitted), cert. denied, 128 S. Ct. 1230, 1231 (2008).

Even assuming that the defendants did deny Tapp access to the courts, he

fails to allege how he was prejudiced. Tapp does not identify which documents

were needed or why the documents were necessary for his motion to reconsider.

Merely obtaining an unsuccessful result at the motion hearing does not

demonstrate a connection between the alleged denial of access to the documents

and legal prejudice. As such, Tapp’s access-to-the-courts claim fails. See Lewis

v. Casey, 518 U.S. 343, 351-52 (1996). 

Tapp does not challenge the district court’s determination that he failed

to allege a due process violation in regard to the loss of his property. He has

therefore abandoned the issue on appeal. 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). Accordingly, the judgment of the district court is

affirmed.
No. 08-30156

3

Tapp is informed that our affirmance of the district court’s dismissal

counts as one strike for purposes of 28 U.S.C. § 1915(g). See Adepegba v.

Hammons, 103 F.3d 383, 387 (5th Cir. 1996). Tapp is cautioned that if he

accumulates three strikes, he will no longer be allowed to proceed in forma

pauperis in any civil action or appeal filed while he is detained or incarcerated

in any facility unless he is in imminent danger of serious physical injury. See

§ 1915(g).

AFFIRMED; SANCTION WARNING ISSUED.