     Case: 13-40493      Document: 00512614053         Page: 1    Date Filed: 04/30/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                      No. 13-40493                          April 30, 2014
                                                                           Lyle W. Cayce
NORMAN LEE BIRL, JR.,                                                           Clerk


                                                 Petitioner-Appellant

v.

LEONTYNE HAYNES, Sergeant Officer; CRAIG FISHER, Bldg Maj; WADE
KING, Disciplinary Captain; GREGG OLIVER, Assistant Warden; CHERYL
LAWSON,

                                                 Respondents-Appellees


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                              USDC No. 9:10-CV-36


Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM: *
       Norman Lee Birl, Jr., seeks leave to proceed in forma pauperis (IFP) in
his appeal of the magistrate judge’s summary judgment dismissal of his 42
U.S.C. § 1983 suit.        By moving to proceed IFP, Birl is challenging the
magistrate judge’s certification that the appeal is not taken in good faith. See
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); FED. R. APP. P. 24(a)(5).



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 13-40493

Our inquiry into an appellant’s good faith “is limited to whether the appeal
involves legal points arguable on their merits (and therefore not frivolous).”
Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal quotation marks
and citation omitted). We may dismiss the appeal if it is frivolous. See Baugh,
117 F.3d at 202 n.24; 5TH CIR. R. 42.2.
     We review the grant of summary judgment de novo, applying the same
standards as the magistrate judge. See Dillon v. Rogers, 596 F.3d 260, 266 (5th
Cir. 2010). All facts and inferences are construed in the light most favorable
to the nonmoving party. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.
1994). Summary judgment is appropriate where the “movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” FED. R. CIV. P. 56(a).
     Birl contends that the magistrate judge erred in determining that his
procedural due process claims relative to the deprivation of his commissary
products and inmate trust account were barred by the Parratt/Hudson
doctrine. See Hudson v. Palmer, 468 U.S. 517 (1984); Parratt v. Taylor, 451
U.S. 527 (1981), overruled in part on other grounds by, Daniels v. Williams, 474
U.S. 327, 330-31 (1986).     The doctrine provides that a deprivation of a
constitutionally protected property interest caused by a state employee’s
random, unauthorized conduct does not give rise to a § 1983 procedural due
process claim unless the state fails to provide an adequate post deprivation
remedy. See Zinermon v. Burch, 494 U.S. 113, 115 (1990). He also contends
that the magistrate judge erred when she concluded that even if that doctrine
did not bar his claims, the defendants were entitled to qualified immunity
because he received the process that he was due.
     The summary judgment evidence indicates that his property interest
claims are not barred by the Parratt/Hudson doctrine. See Allen v. Thomas,



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                                 No. 13-40493

388 F.3d 148-49 (5th Cir. 2004). The magistrate judge alternatively found,
however, that the defendants were correct that Birl failed to exhaust his
administrative remedies on his claim that the disciplinary hearing officer
violated his due process rights when he denied Birl the right to introduce
evidence of the book orders. In addressing this finding, Birl asserts that “the
requirements, the rules, and the necessity of submitting affidavits” were not
explained to him. Birl cites cases outside of this circuit that hold that the
district court must give fair notice of the requirements and consequences of the
summary judgment rule.        The cases are inapposite to the question of
exhaustion. See 42 U.S.C. § 1997e(a); Johnson v. Johnson, 385 F.3d 503, 517
(5th Cir. 2004).     Moreover, the defendants’ summary judgment evidence
reflects that Birl’s grievances lacked the level of detail necessary to exhaust
his claim that the defendants violated his due process rights when they denied
him the opportunity to introduce evidence of book orders. See Johnson, 385
F.3d at 515-17. Thus, Birl has not shown that a nonfrivolous issue exists
regarding the magistrate judge’s grant of summary judgment. See Dillon, 596
F.3d at 266.
     Birl has not shown that the magistrate judge erred in certifying that his
appeal was not taken in good faith. See Baugh, 117 F.3d at 202. He has also
failed to show that his appeal involves “legal points arguable on their merits.”
Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal quotation marks
and citation omitted). Accordingly, his IFP motion, his request for a copy of
the record at government expense, and his motion for the appointment of
counsel are DENIED. Birl’s appeal is frivolous and is therefore DISMISSED.
See id. at 219-20; 5TH CIR. R. 42.2. The dismissal of Birl’s appeal counts as a
strike for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d
383, 387-88 (5th Cir. 1996). Birl is WARNED that if he accumulates three



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                                 No. 13-40493

strikes, he will not be able to proceed IFP 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).




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