Mozee v. Crowley, et al

* 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this opinion should not be published and is not precedent except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
F I L E D
July 5, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-40438
Summary Calendar
PATRICK MOZEE,
Plaintiff-Appellant,
versus
UNIDENTIFIED CROWLEY, Lieutenant; HENRY REECE, Sergeant;
DAVID STACKS, Senior Warden; UNIDENTIFIED COMPEAU, Officer;
JOHN RUPERI, Warden; ANECIA ROSS, Correctional Officer III;
TACOMA JEFFERSON, Correctional Officer III; CHARLES BRANNAN,
Correctional Officer III; MICHAEL DOWNS, Correctional Officer IV;
OFFICER RANDY MCBAIN, Correctional Officer IV; NORRIS JORDAN,
Lieutenant; DWAYNE DEWBERRY, Major; LIEUTENANT WILLIAM D. GADDIS,
JR., Captain; BRUCE ROSEBERRY, Captain,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:04-CV-134
--------------------
Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Patrick Mozee, Texas inmate # 884424, appeals the dismissal
of his civil rights complaint filed under 42 U.S.C. § 1983 as
frivolous pursuant to 28 U.S.C. § 1915A(b). Mozee’s claim for
money damages on the basis that the defendants conspired not to
protect him from the death threats of other inmates lacks a basis

-- 1 of 3 --

No. 05-40438
-2-
in law because Mozee was not physically attacked and does not
allege physical injury. See Geiger v. Jowers, 404 F.3d 371, 371
(5th Cir. 2005); 42 U.S.C. § 1997e(e). Mozee is not entitled to
injunctive relief on his failure-to-protect claim because he has
been transferred to another unit and he has not shown a
likelihood of future harm. See City of Los Angeles v. Lyons, 461
U.S. 95-109 (1983); Geiger, 404 F.3d at 374.
Mozee’s claim that the defendants failed to respond to his
grievances does not implicate a constitutional right. See
Geiger, 404 F.3d at 373-74. Likewise, Mozee’s claim that he was
entitled to protective custody fails because he has no
constitutional right to a particular classification. Whitley v.
Hunt, 158 F.3d 882, 889 (5th Cir. 1998), abrogated in part on
other grounds, Booth v. Churner, 532 U.S. 731 (2001); see also
Neals v. Norwood, 59 F.3d 530, 533 (5th Cir. 1995). Mozee’s
claim that the district court erred when it denied his motion for
the appointment of counsel fails because his case did not involve
exceptional circumstances. See Ulmer v. Chancellor, 691 F.2d
209, 212 (5th Cir. 1992). Nor was he entitled to expert
witnesses at his hearing under Spears v. McCotter, 766 F.2d 179
(5th Cir. 1985).
By failing to brief his claims that the defendants engaged
in cruel and unusual punishment during a strip search, denied him
access to the courts, and denied him food, Mozee has abandoned

-- 2 of 3 --

No. 05-40438
-3-
them. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.
1993).
Because Mozee’s appeal lacks any legal point arguable on its
merits, it is dismissed as frivolous. See Howard v. King, 707
F.2d 215, 219-20 (5th Cir. 1983). The dismissal of Mozee’s
complaint by the district court counts as a strike under 28
U.S.C. § 1915(g), as does the dismissal of this appeal. See
Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996); 28
U.S.C. § 1915(g). Mozee 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 § 1915(g).
APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING ISSUED.

-- 3 of 3 --