     Case: 13-30509       Document: 00512427513         Page: 1     Date Filed: 11/01/2013




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

                                                                            FILED
                                                                         November 1, 2013
                                       No. 13-30509
                                                                           Lyle W. Cayce
                                                                                Clerk
PHILLIP RAY BARNES,

                                                  Plaintiff-Appellant

v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY;
CLASSIFICATION DEPARTMENT; MEDICAL DEPARTMENT; MENTAL
HEALTH DEPARTMENT,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:12-CV-756


Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
       Phillip Ray Barnes, Louisiana prisoner # 99858, has filed a motion for
leave to proceed in forma pauperis (IFP) on appeal from the district court’s
dismissal of his civil rights action as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i).
The district court denied his motion to proceed IFP, certifying that the appeal
was not taken in good faith. By moving in this court for IFP status, Barnes is




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 13-30509

challenging the district court’s certification. See Baugh v. Taylor, 117 F.3d 197,
202 (5th Cir. 1997).
      Contending that he stated a valid claim for relief, Barnes asserts that by
assigning prisoners to be tier walkers in areas housing inmates with mental
health issues, prison officials deliberately and maliciously put the prisoners’
health and safety in jeopardy. We review for abuse of discretion a district court’s
dismissal of a complaint as frivolous under § 1915(e)(2)(B)(i). Brewster v. Dretke,
587 F.3d 764, 767 (5th Cir. 2009). A claim is frivolous if it lacks an arguable
factual or legal basis. Id.
      The allegations that Barnes makes in his submissions to this court suggest
that he intended to raise a claim that prison officials violated the Eighth
Amendment by acting with deliberate indifference in assigning him to a job as
a tier walker. In his complaint, however, he did not allege any particular risk
to his health or safety, much less any excessive risk, nor did he allege how any
prison official was deliberately indifferent. See Farmer v. Brennan, 511 U.S.
825, 828 (1994). Accordingly, the district court did not abuse its discretion in
dismissing the claim as frivolous.
      To the extent that Barnes sought to raise a claim under the Fourteenth
Amendment for a due process violation, this claim, too, was frivolous. Prisoners
do not have a constitutionally protected liberty or property interest in their
prison job assignments. Bulger v. United States Bureau of Prisons, 65 F.3d 48,
50 (5th Cir. 1995).
      Barnes also complains that the district court did not invite him to amend
his complaint. Generally, a district court should not dismiss a pro se plaintiff’s
complaint without first giving him the opportunity to amend it. Brewster, 587
F.3d at 767-68. However, if a plaintiff has pleaded his “‘best case,’” then the
court is not required to permit amendment. Id. at 768. Barnes does not say
what he would have added to his complaint had the court asked him for a more
definite statement or allowed him to amend. He explains generally that there

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                                  No. 13-30509

are dangers involved in his job and recounts that on one occasion a year ago, a
tier walker got into a fight with another inmate, but these do not rise to the level
of alleging that the job poses a serious risk to his health or safety or that any
official acted with deliberate indifference. Accordingly, the district court did not
abuse its discretion in dismissing his case without permitting him to amend his
complaint. See id.
      This appeal is without arguable merit and is thus 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 dismissal of Barnes’s complaint and
the dismissal of his appeal both count as strikes for purposes of 28 U.S.C.
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).
Barnes is warned that if he accumulates three strikes, he will not be allowed to
bring a civil action or appeal a judgment in forma pauperis unless he is under
imminent danger of serious physical injury. See § 1915(g). Barnes’s motion for
appointment of counsel is denied.
      APPEAL DISMISSED; MOTION FOR APPOINTMENT OF COUNSEL
DENIED; SANCTION WARNING ISSUED.




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