No. 98-60527

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* 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that this opinion should not be published and is not precedent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. 98-60527

Summary Calendar

 

CURTIS B. CURRY,

Plaintiff-Appellant,

versus

STEVE PUCKETT; JAMES ANDERSON; ROBERT ARMSTRONG,

Warden; MISSISSIPPI STATE PENITENTIARY EMERGENCY

RESPONSE TEAM; JOHN DOE, I, Chief of Security; 

MISSISSIPPI STATE HIGHWAY PATROLMEN; JIM INGRAM,

Commissioner of Public Safety; JOHN DOE, IV, 

Mississippi State Penitentiary Superintendent

James Anderson’s Designee; MISSISSIPPI STATE

PENITENTIARY REGIMENT INDIVIDUAL DISCIPLINE

INMATES; TOPPIE SPELLS; JOE CONNER, Lieutenant;

DAVID HARRISON, Major; MISSISSIPPI STATE 

PENITENTIARY; MISSISSIPPI DEPARTMENT OF 

CORRECTIONS; JESSIE RANDLE; JOHN WILLIAM; 

CHERONDA JOHNSON; JOHN DOE, II, Commissioner

Puckett’s Designee; JOHN DOE, III, Commissioner

Puckett’s Designee; K-9 TACTICAL TEAM,

Defendants-Appellees.

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

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 4:97-CV-118-B-A

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

March 1, 2000

Before KING, Chief Judge, and HIGGINBOTHAM and STEWART, Circuit

Judges.

PER CURIAM:*

Curtis B. Curry, Mississippi prisoner # 81606, challenges

the district court’s dismissal as frivolous of his 42 U.S.C. 
No. 98-60527

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§ 1983 lawsuit alleging denial of access to the courts and an

unconstitutional seizure and destruction of his legal materials. 

Although Curry asserted in the district court that the loss of

his legal materials affected his ability to prosecute nine cases,

he has briefed the adverse effects in only three of those cases. 

The merits surrounding the other six are deemed abandoned. Yohey

v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). As for the

remaining three cases, Curry has not shown that the loss of his

legal materials affected his ability to “prepare and transmit a

necessary legal document to a court.” See Brewer v. Wilkinson, 3

F.3d 816, 821 (5th Cir. 1993). In one, Curry v. Walls, Curry was

not prevented from filing a response in this case because of the

loss of legal materials, but by his own delay in requesting an

extension of time to file a response to the clerk’s order to show

cause. In the others, Curry v. Hargett and Curry v. Dial, he

admitted that he was able to present documents and hold a hearing

after the loss of his legal materials. Curry has not shown that

his ability to try any case was affected by the loss of his legal

materials.

Curry also asserts that the prison personnel violated his

constitutional rights by failing to follow prison policies while

failing to take custody of Curry’s legal materials before Curry

went to the hospital, while conducting a “shakedown” search of

the prison area, and while confiscating and destroying Curry’s

legal materials. This argument is frivolous. An allegation that

prison officials failed to follow prison policy, without more,
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does not state a constitutional cause of action. Hernandez v.

Estelle, 788 F.2d 1154, 1158 (5th Cir. 1986).

Because Curry’s appeal is without arguable merit, it is

frivolous and must be dismissed. See Howard v. King, 707 F.2d

215, 219-20 (5th Cir. 1983). This dismissal of a frivolous

appeal following the district court’s dismissal of the lawsuit as

frivolous constitutes two strikes against Curry for purposes of

28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 388

(5th Cir. 1996). If one other district court action or appeal

filed by Curry is dismissed as frivolous, he will be barred from

bringing a civil action or appeal as a prisoner proceeding in

forma pauperis unless he is under imminent danger of serious

physical injury. See § 1915(g). 

APPEAL DISMISSED AS FRIVOLOUS. 5TH CIR. R. 42.2. SANCTIONS

WARNING ISSUED.