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

                                                                   FILED
                                                                 October 27, 2008
                               No. 08-60210
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

DAVID WEATHERSPOON

                                           Plaintiff-Appellant

v.

JOHN D FERGUSON, President, CCA; CHRISTOPHER B EPPS,
COMMISSIONER, MISSISSIPPI DEPARTMENT OF CORRECTIONS;
RAYMOND BYRD, Warden for CCA; KIMBERLY KENT ROKASKY, Mailroom
Clerk for CCA

                                           Defendants-Appellees


                 Appeal from the United States District Court
                   for the Northern District of Mississippi
                            USDC No. 4:08-CV-3


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
      David Weatherspoon, Mississippi prisoner # 39891, moves for leave to
proceed in forma pauperis (IFP) on appeal from the district court’s dismissal of
his 42 U.S.C. § 1983 complaint for failure to state a claim. In his complaint,
Weatherspoon alleged that various officials affiliated with the Corrections
Corporation of America-Delta Correctional Facility and the Mississippi

      *
      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should not be published and is not precedent except under the limited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. 08-60210

Department of Corrections tampered with his mail. Weatherspoon specifically
alleged that his legal mail, which was sealed and properly stamped, was
improperly returned to him on the ground that it had not been processed in
accordance with prison regulations. Weatherspoon argued that the defendants’
actions denied him access to the courts and violated the Fourth Amendment.
      By moving for leave to proceed IFP, Weatherspoon is challenging the
district court’s certification that his appeal was not taken in good faith. See
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); 28 U.S.C. § 1915(a)(3); FED.
R. APP. P. 24(a)(3). For the reasons detailed below, Weatherspoon’s motion for
IFP is GRANTED.
      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). However, to state a claim based on delay or
interference with the mail, a plaintiff must show actual injury. See Ruiz v.
United States, 160 F.3d 273, 275 (5th Cir. 1998). In this context, an inmate
shows an actual injury by establishing that “his position as a litigant was
prejudiced” due to the disputed acts. Walker v. Navarro County Jail, 4 F.3d 410,
413 (5th Cir. 1993).
      Weatherspoon has not alleged that he suffered any actual prejudice due
to the defendants’ purported interference with his mail. His claim that he was
denied access to the courts therefore does not involve legal points arguable on
their merits. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal
quotations and citations omitted). Accordingly, this portion of the district court’s
judgment is AFFIRMED.
      However, although Weatherspoon alleged in his § 1983 complaint that the
defendants’ actions interfered with his right to be free from an illegal search and
seizure, the district court failed to address whether Weatherspoon had stated a
claim under the Fourth Amendment.            Consequently, the district court’s
conclusion that Weatherspoon’s complaint did not form a basis for relief, and its

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                                No. 08-60210

resulting certification that Weatherspoon’s motion to proceed IFP on appeal was
not taken in good faith, were erroneous. Whether the facts ultimately establish
a Fourth Amendment claim is not a question to be answered at this stage of the
proceedings. See Howard, 707 F.2d at 220. The district court’s dismissal of
Weatherspoon’s Fourth Amendment claim is VACATED and REMANDED for
further proceedings.
      MOTION FOR IFP GRANTED; AFFIRMED IN PART; VACATED AND
REMANDED IN PART.




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