                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                 October 12, 2004

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 03-31122



JOHN DONALDSON

                  Plaintiff - Appellant

v.

RICHARD DUCOTE

                  Defendant - Appellee


            Appeal from the United States District Court
         for the Middle District of Louisiana, Baton Rouge
                           No. 03-CV-445-C


Before KING, Chief Judge, and DeMOSS and STEWART, Circuit Judges.

PER CURIAM:*

     John Donaldson, Louisiana prisoner # 92968, has moved this

court for leave to proceed in forma pauperis (IFP) on appeal from

the district court’s dismissal of his 42 U.S.C. § 1983 suit with

prejudice as frivolous and for failure to state a claim under 28

U.S.C. § 1915(e)(2)(B).    In denying Donaldson’s motion to proceed

IFP on appeal, the district court certified that the appeal was

not taken in good faith.    For the reasons given below, we hold

that Donaldson’s appeal is frivolous and therefore dismiss it


     *
        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that this opinion should not be published and is not precedent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.
under 5TH CIR. R. 42.2.

                             I. Background

     Donaldson is an inmate at the Louisiana State Penitentiary.

On February 12, 2003 Donaldson was the subject of a disciplinary

proceeding that resulted in him being transferred to a maximum-

security working cellblock.    On June 5, 2003, Donaldson filed a

§ 1983 complaint with the district court alleging that Lieutenant

Richard Ducote, chairman of the disciplinary board, violated his

Fourteenth Amendment right to due process by denying him a copy

of the disciplinary report used against him in a prison

disciplinary proceeding and by not providing him with a copy of

the written summary of the disciplinary hearing.    The complaint

was referred to a magistrate judge, who recommended that the

district court dismiss the case under § 1915(e)(2)(B) because

Donaldson failed to show that his transfer violated a

constitutionally protected liberty or property interest.

Donaldson objected to the magistrate judge’s report and

recommendation.   After de novo review, the district court adopted

the report and dismissed Donaldson’s complaint both as frivolous

and for failure to state a claim.

     Donaldson filed a notice of appeal but did not pay the

requisite filing fee.     In response, the magistrate judge ordered

that Donaldson either pay the fee or file a motion under FED. R.

APP. P. 24(a)(1) to proceed as a pauper on appeal; Donaldson



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chose to file an IFP motion.   The motion was referred to the

magistrate judge who issued an order denying it under

§ 1915(a)(3) because she certified that Donaldson’s appeal was

not taken in good faith for the reasons stated in the district

court’s order denying Donaldson’s complaint.     See also FED. R.

APP. P. 24(a)(3)(A).   Donaldson subsequently moved this court for

permission to proceed IFP on appeal.     See FED. R. APP. P.

24(a)(5).

     On appeal, this court held that Donaldson’s motion to

proceed IFP was premature because the magistrate judge did not

have jurisdiction to enter a final, appealable order under 28

U.S.C. § 1291 for this court’s review.     Donaldson v. Ducote, 373

F.3d 622 (5th Cir. 2004).   Therefore we remanded Donaldson's

motion to the district court for the limited purpose of reviewing

the magistrate judge's certification and to enter the appropriate

order. Id.   The district court subsequently certified that

Donaldson’s appeal was not taken in good faith for the reasons

set forth in the magistrate report and accordingly issued an

order denying Donaldson’s motion to proceed IFP.     By moving this

court for IFP status on appeal, Donaldson is challenging the

district court’s certification order.     See Baugh v. Taylor, 117

F.3d 197, 201-02 (5th Cir. 1997).



                       II. Standard of Review



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     We review de novo the lower court’s certification that

Donaldson’s appeal is not taken in good faith.     Cruz v. Hauck,

404 U.S. 59, 63 (1971) (per curiam); Baugh, 117 F.3d at 201 n.18.

“‘Good faith’ has been defined as a requirement that an appeal

present a nonfrivolous question for review.”     Cruz, 404 U.S. at

62; accord Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983).

Although a plaintiff seeking IFP status need not demonstrate

probable success on the merits, Jackson v. Dallas Police

Department, 811 F.2d 260, 261 (5th Cir. 1986), his complaint will

be deemed frivolous “if it lacks an arguable basis in law or

fact.”   Harper v. Showers, 174 F.3d 716, 718 (5th Cir. 1999).

“‘A complaint lacks an arguable basis in law if it is based on an

indisputably meritless legal theory, such as if the complaint

alleges the violation of a legal interest which clearly does not

exist.’”   Id. (quoting Davis v. Scott, 157 F.3d 1003, 1005 (5th

Cir. 1998)).

                          III. Discussion

     Donaldson alleges that he was denied due process at his

disciplinary hearing and that this denial implicated his

Fourteenth Amendment rights when he was transferred from “Class A

Trusty” status to the maximum-security working cellblock (i.e.,

“lockdown”) as punishment for a disciplinary infraction.    Yet,

after the Supreme Court’s decision in Sandin v. Conner, 515 U.S.

472 (1995), we have held that a prisoner’s change in custody



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status, “without more, does not constitute a deprivation of a

constitutionally cognizable liberty interest.”   Luken v. Scott,

71 F.3d 192, 193 (5th Cir. 1995) (per curiam) (emphasis added);

see also Harper, 174 F.3d at 719.   To demonstrate a liberty

interest, a prisoner must show either that his classification was

imposed for disciplinary reasons and involves “atypical,

significant” hardships that “present a dramatic departure from

the basic conditions” of prison life, Wilkerson v. Stalder, 329

F.3d 431, 436 (5th Cir. 2003) (quoting Sandin, 515 U.S. at 486),

or that the disciplinary classification “clearly impinge[s] on

the duration of confinement.”   Orellana v. Kyle, 65 F.3d 29, 31-

32 (5th Cir. 1995).

     Even when viewed liberally, Donaldson’s complaint does not

present a constitutionally cognizable argument on either basis.

First, he does not allege any facts that might support an

inference that his confinement in maximum security is excessively

harsh when compared to the ordinary incidents of prison life.

Second, instead of claiming that this disciplinary sanction will

inevitably lengthen the duration of his sentence, Donaldson

merely suggests that the presence of the disciplinary report in

his prison record “greatly reduce[s] . . . the possibility of

obtaining a reduction in his sentence” by the parole board.

However, “speculative, collateral consequences” of prison

decisions that may affect the timing of parole “do not create

constitutionally protected liberty interests.”   See Luken, 71

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F.3d at 193 (stating that speculative, collateral consequences of

prison administrative decisions such as the loss of the

opportunity to earn good-time credits, which might lead to

earlier parole, do not create constitutionally protected liberty

interests).

     Accordingly, because Donaldson presents no non-frivolous

issues for appeal, we deny his motion to proceed IFP and dismiss

his appeal under 5TH CIR. R. 42.2.    See Baugh, 117 F.3d at 202 &

n.24 (stating that “nothing prevents the appellate court from sua

sponte dismissing the case on the merits pursuant to 5TH CIR. R.

42.2 when it is apparent that an appeal would be meritless.”).

     We also note that a prisoner is prohibited from bringing a

civil action or from appealing a judgment under § 1915 if the

prisoner has, on three or more prior occasions, brought an action

or appeal that was dismissed on the grounds that it was

frivolous, malicious, or failed to state a claim.     28 U.S.C.

§ 1915(g).    Both the district court’s dismissal of Donaldson’s

complaint and this court’s denial of Donaldson’s motion count as

“strikes” for the purposes of § 1915(g).     See Adepegba v.

Hammons, 103 F.3d 383, 388 (5th Cir. 1996).     We caution Donaldson

that once he accumulates three strikes, he may not 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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                         III. Conclusion

     MOTION DENIED; APPEAL DISMISSED AS FRIVOLOUS; SANCTIONS

WARNING ISSUED.




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