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

                                                                  FILED
                                                                  July 11, 2008
                                No. 06-31247
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

GREGORY DAMM

                                            Plaintiff-Appellant

v.

LYNN COOPER, Et Al

                                            Defendants

LAURIE DUFOUR; GARY GRIMILLION; DEBRA MITCHELL; RICHARD L
STALDER

                                            Defendants-Appellees


                 Appeal from the United States District Court
                    for the Western District of Louisiana
                           USDC No. 1:04-CV-1456


Before REAVLEY, JOLLY, and DENNIS, Circuit Judges.
PER CURIAM:*
      Gregory Damm, Louisiana prisoner # 457183, has appealed the district
court’s order granting the defendants’ motion for summary judgment and
dismissing his civil rights complaint, in which he asserted that the appellees had


      *
      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should not be published and is not precedent except under the limited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.
                                  No. 06-31247

interfered with his outgoing legal mail related to his efforts to obtain state
habeas relief and to pursue a civil action related to an alleged excessive force
incident. The district court determined that Damm had failed to show that there
was a genuine issue of material fact whether the defendants had interfered with
his legal mail and that Damm had failed to show that his position as a litigant
had been prejudiced. See Pell v. Procunier, 417 U.S. 817, 822 (1974); Richardson
v. McDonnell, 841 F.2d 120, 122 (5th Cir. 1988).
      Damm contends on appeal that the district court should not have granted
summary judgment for the defendants without first permitting him to complete
discovery.   Because Damm did not demonstrate that a continuance was
necessary, the district court did not abuse its discretion. See Adams v. Travelers
Indem. Co. of Connecticut, 465 F.3d 156, 162 (5th Cir. 2006); King v. Dogan, 31
F.3d 344, 346 (5th Cir. 1994); see also FED. R. CIV. P. 56(f).
      Summary judgment is proper under Rule 56 “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). If the moving party meets the initial burden
of showing that there is no genuine issue of material fact, the burden shifts to
the nonmoving party to produce evidence or designate specific facts showing the
existence of a genuine issue for trial. Id. at 322–24; Rule 56(e); see Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). The nonmoving
party “cannot satisfy this burden with conclusory allegations, unsubstantiated
assertions, or only a scintilla of evidence.” Freeman v. Texas Dep’t of Crim.
Justice, 369 F.3d 854, 860 (5th Cir. 2004). We review a grant of summary
judgment de novo. Id. at 859.
      “An amended complaint supersedes the original complaint and renders it
of no legal effect unless the amended complaint specifically refers to and adopts
or incorporates by reference the earlier pleading.” King, 31 F.3d at 346. Damm’s

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third amended complaint does not contain such a reference, adoption, or
incorporation by reference. In determining whether the district court erred in
granting summary judgment, we have limited our deliberations to the issues
raised in Damm’s third amended complaint. Most of the arguments in Damm’s
appellate briefs are incoherent and concern matters that are not relevant to and
exceed the scope of the claims asserted in his third amended complaint. Those
arguments have not been considered.
      An inmate alleging denial of access to the courts must demonstrate an
actual injury stemming from defendants’ unconstitutional conduct. Lewis v.
Casey, 518 U.S. 343, 351-54 (1996). In other words, the prisoner must show that
his legal position has been prejudiced. See Richardson v. McDonnell, 841 F.2d
120, 122 (5th Cir. 1988). The prisoner must show that he was prevented from
raising a meritorious legal issue. Ruiz v. United States, 160 F.3d 273, 275 (5th
Cir. 1998). “A prison official’s interference with a prisoner’s legal mail may
violate the prisoner’s constitutional right of access to the courts.” Brewer v.
Wilkinson, 3 F.3d 816, 820 (5th Cir. 1993). In his confusing and rambling briefs,
Damm does not mention the district court’s holding that Damm had not shown
that his legal position had been prejudiced by the defendants’ interference with
his legal mail. For that reason, Damm has failed to show that the district court
erred in rejecting his denial-of-access-to-the-courts claim. See Richardson, 841
F.2d at 122.
      “A prison official’s interference with a prisoner’s legal mail . . . may violate
the prisoner’s First Amendment right to free speech—i.e., the right to be free
from unjustified governmental interference with communication.”              Brewer,
3 F.3d at 820, 825-26.      Damm’s conclusional statements and documents
submitted by him showing that some of his mail was sent from the prison but
was not received by the addressees do not establish a genuine issue as to
whether the defendants actually interfered with Damm’s outgoing mail. See
Freeman, 369 F.3d at 860.

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                                 No. 06-31247

      The instant appeal is frivolous, see Howard v. King, 707 F.2d 215, 219-20
(5th Cir. 1983), and is dismissed. See 5TH CIR. 42.2. Damm has filed a motion
for appointment of counsel, which is denied. See Ulmer v. Chancellor, 691 F.2d
209, 212 (5th Cir. 1982).
      The dismissal of this appeal as frivolous counts as a strike pursuant to 28
U.S.C. § 1915(g). Damm has at least five additional strikes. See Damm v.
Morgan, No. 05-270-C (M.D. La., May 5, 2005); Damm v. Booty, No. 05-1093-A
(W.D. La. Jan. 19, 2006); Damm v. Koval, No. 07-3129 (C.D. Ill. June 28, 2007);
Damm v. Smart, No. 07-853FJP-SCR (M.D. La. Nov. 27, 2007); Damm v. Baham,
No. 1:08-cv-01619-KMW (S.D.N.Y. Feb. 19, 2008).           Because Damm has
accumulated at least three strikes, 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).
We caution Damm again that, to avoid the imposition of an additional sanction,
Damm should review any pending appeals to ensure that the do not raise issues
that are frivolous.
      APPEAL DISMISSED; MOTION DENIED; 28 U.S.C. § 1915(g) BAR
IMPOSED; SANCTION WARNING ISSUED.




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