     Case: 17-60153      Document: 00515134131         Page: 1    Date Filed: 09/26/2019




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

                                                                              FILED
                                    No. 17-60153                     September 26, 2019
                                  Summary Calendar
                                                                         Lyle W. Cayce
                                                                              Clerk
OMAR KHAYYAM HUMPHREY,

                                                 Plaintiff-Appellant

v.

JACQUELYN BANKS, Superintendent South Mississippi Correctional
Institution;   PELICIA       HALL,       COMMISSIONER,     MISSISSIPPI
DEPARTMENT OF CORRECTIONS, Commissioner Mississippi Department
of Corrections; MARSHALL TURNER, Warden at South Mississippi
Correctional Institution; JAMES COOKSEY, Internal Affairs Coordinator at
South Mississippi Correctional Institution,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:15-CV-424


Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Omar Khayyam Humphrey, Mississippi prisoner # R3755, appeals the
dismissal of his 42 U.S.C. § 1983 complaint that raised allegations of deliberate
indifference to his safety. On appeal, Humphrey reiterates that prison officials


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-60153

subjected him to an unreasonable risk of harm and acted with deliberate
indifference by assigning him to a prison unit that houses gang-affiliated
inmates. Humphrey also challenges the denial of his motion for preliminary
injunction, motion to supplement, and motion for transfer to a different prison.
      We conclude that Humphrey has not shown that the district court erred
by granting the defendants’ motion for summary judgment on his failure-to-
protect claim because he put forward no evidence that he suffered an actual
physical injury resulting from prison officials’ purported failure to protect him.
See Jones v. Greninger, 188 F.3d 322, 326 (5th Cir. 1999); see also FED. R. CIV.
P. 56(a). Likewise, Humphrey shows no error in the district court’s decision to
grant summary judgment on his request for injunctive relief insofar as he
points to no evidence to support a finding of a likelihood of future harm. See
Geiger v. Jowers, 404 F.3d 371, 375 (5th Cir. 2005). Further, Humphrey has
not shown that the district court erred by dismissing for failure to state a claim
his claim that prison officials violated an internal policy by assigning him to a
unit that housed gang-affiliated inmates.        Violations of prison rules or
regulations, without more, do not give rise to a cause of action. See Hernandez
v. Estelle, 788 F.2d 1154, 1158 (5th Cir. 1986). Moreover, “[a] prison inmate
does not have a protectable liberty or property interest in his custodial
classification” and does not have a constitutional right to be housed in a
particular facility. Neals v. Norwood, 59 F.3d 530, 533 (5th Cir. 1995); see Olim
v. Wakinekona, 461 U.S. 238, 244-45 (1983). Finally, because Humphrey failed
to allege that prison officials treated affiliated and non-affiliated prisoners
differently, the district court properly concluded that Humphrey failed to state
an equal protection claim based on his housing classification. See Muhammad
v. Lynaugh, 966 F.2d 901, 903 (5th Cir. 1992).




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                                  No. 17-60153

      The district court did not abuse its discretion in denying the motion for
a preliminary injunction as Humphrey did not make, at the very least, a
showing of a “substantial likelihood of success on the merits” or a “substantial
threat of irreparable injury if the injunction is not issued.” Byrum v. Landreth,
566 F.3d 442, 445 (5th Cir. 2009); see Women’s Med. Ctr. v. Bell, 248 F.3d 411,
419 (5th Cir. 2001). Likewise, Humphrey establishes no error in connection
with the denial of the motion to supplement or motion to transfer.
      Because only some of Humphrey’s claims were dismissed for failure to
state a claim, the district court erroneously imposed a strike pursuant to 28
U.S.C. § 1915(g); that strike is therefore vacated. See Brown v. Megg, 857 F.3d
287, 290-91 (5th Cir. 2017). However, Humphrey had accumulated two prior
strikes before bringing this action. See Humphrey v. Murry, No. 4:10-cv-132
(N.D. Miss. Dec. 1, 2010) (imposing strike based on dismissal of complaint as
frivolous and for failure to state a claim); Humphrey v. Miss. Dep’t of Corr., No.
4:10-cv-81 (N.D. Miss. Nov. 29, 2010) (dismissing complaint for failure to state
a claim). Thus, Humphrey is WARNED that if he accumulates a third strike,
he may not proceed IFP in any civil action or appeal while he is incarcerated
or detained in any facility unless he is in imminent danger of serious physical
injury. See § 1915(g).
      The district court’s judgment is AFFIRMED; the motion to file reply brief
out of time is GRANTED; the imposition of a strike against Humphrey
pursuant to § 1915(g) is VACATED.




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