Conference Calendar FREDERICK DEWAYNE MALONE v. Nfn Pedigo, Cpl

* 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should not be published and is not precedent except under the limited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. 07-11025
Conference Calendar
FREDERICK DEWAYNE MALONE
Plaintiff-Appellant
v.
NFN PEDIGO, CPL
Defendant-Appellee
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:07-CV-467
Before JONES, Chief Judge, and JOLLY and DENNIS, Circuit Judges.
PER CURIAM:*
Frederick Dewayne Malone, Texas prisoner # 0699305, appeals from the
dismissal of his 42 U.S.C. § 1983 complaint as frivolous and for failure to state
a claim. Malone contends that the district court erred in dismissing his
complaint against Corporal Pedigo of the Tarrant County Jail. He reasserts his
argument that the opening of his mail and the deprivation of his SSI check
violated his constitutional rights.
United States Court of Appeals
Fifth Circuit
F I L E D
June 19, 2008
Charles R. Fulbruge III
Clerk

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No. 07-11025
2
Because Texas has adequate post-deprivation remedies for the deprivation
of prisoner property, Malone’s allegation that he was deprived of his personal
property fails to state a claim for which relief may be granted. See Hudson v.
Palmer, 468 U.S. 517, 533 (1984); Murphy v. Collins, 26 F.3d 541, 543-44 (5th
Cir. 1994). His claim regarding the opening of his mail is frivolous and fails to
state a claim for relief. The opening and reading of Malone’s mail by prison
authorities is not a violation of his constitutional rights. See Brewer v.
Wilkinson, 3 F.3d 816, 825 (5th Cir. 1993); see also Busby v. Dretke, 359 F.3d
708, 722 (5th Cir. 2004).
Malone’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
Malone’s complaint and the dismissal of this appeal as frivolous count as two
strikes for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d
383, 387-88 (5th Cir. 1996). Malone has two previous strikes. See Malone v.
Byrd, No. 07-10926 (5th Cir. Apr. 21, 2008). Because Malone has now
accumulated more than 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.
See § 1915(g).
APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR IMPOSED.

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