     Case: 11-40254     Document: 00511766994         Page: 1     Date Filed: 02/24/2012




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

                                                                            FILED
                                                                         February 24, 2012
                                     No. 11-40254
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

ROBERT MCINTOSH,

                                                  Plaintiff-Appellant

v.

WARDEN RAYMOND THOMPSON; PROPERTY OFFICER D. WHITTEN;
LAW LIBRARY SUPERVISOR DAN GANNON; PROPERTY OFFICER JOHN
MARCUM; PHILLIP PENNINGTON; FORMER ASSISTANT WARDEN S.
SWIFT,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 6:09-CV-444


Before WIENER, GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Plaintiff-Appellant Robert McIntosh, Texas prisoner # 795107, appeals the
dismissal of his 42 U.S.C. § 1983 complaint as frivolous and for failure to state
a claim on which relief may be granted. In his complaint, McIntosh alleged that
the defendants denied him meaningful access to the courts by confiscating and
destroying his legal property.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-40254    Document: 00511766994      Page: 2    Date Filed: 02/24/2012

                                  No. 11-40254

      McIntosh maintains that the district court erred by dismissing his claims
of denial of access to the courts. He contends that the defendants were required
by prison regulations to return his legal property within seven days after it was
confiscated and that their failure to return it violated his right of meaningful
access to the courts.      He asserts that the defendants’ confiscation and
destruction of his legal property prevented him from amending his state habeas
corpus application and from filing a suit for breach of contract against a civil
attorney. He also insists that he was unable to amend his state habeas corpus
application to add a claim that his counsel was ineffective for not challenging
biased members of the jury pool who eventually were seated on the jury. And,
he contends that he was unable to file the breach of contract lawsuit because the
confiscated legal property included his contract with the attorney whom he
intended to sue.
      At a hearing held pursuant to Spears v. McCotter, 766 F.2d 179 (5th Cir.
1985), McIntosh acknowledged that the issue surrounding the confiscation and
destruction of his legal property was that he had too much legal property.
McIntosh’s allegations and testimony showed that 16 boxes of legal property
were destroyed, that he had several more boxes of legal property at the prison,
that he had sent five boxes of legal property to the district court, and that he had
sent an additional 400-500 pounds of legal property away from the prison.
McIntosh alleged that the destroyed legal property included trial transcripts,
divorce transcripts, property records, and legal paperwork from old cases.
Noting that prison regulations provided that there was no set limit on the
amount of legal property that an inmate could keep, he nevertheless
acknowledged that extra boxes for legal property would only be issued to a
prisoner if the legal property involved an active case.
      We have previously held that it seems “highly dubious that a facially
neutral prison storage space limitation of four cubic feet might in any way
restrict a prisoner’s exercise of constitutional rights, especially considering the

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                                   No. 11-40254

obvious space limitations in a prison setting.” Long v. Collins, 917 F.2d 3, 4 (5th
Cir. 1990). As McIntosh’s allegations show that he was allowed to keep a large
amount of legal property and that the confiscation and destruction of some of his
legal property resulted from the large quantity of legal property he had, it is
“highly dubious” that McIntosh’s constitutional rights were restricted. Id.
      Even if McIntosh’s constitutional rights had been restricted, he failed to
allege sufficiently that he suffered an injury in fact, which is required to state
a claim for denial of meaningful access to the courts.          See Christopher v.
Harbury, 536 U.S. 403, 415 (2002). His assertion that he was prevented from
filing a lawsuit against a civil attorney is insufficient because the right of access
to the courts extends only to claims challenging a conviction, sentence, or
conditions of confinement. “Impairment of any other litigating capacity is simply
one of the incidental (and perfectly constitutional) consequences of conviction
and incarceration.” Lewis v. Casey, 518 U.S. 343, 355 (1996).
      Even though McIntosh also alleged that the actions of the defendants
prevented him from amending his state habeas corpus application to add an
ineffective assistance of counsel claim, he did not sufficiently allege how the
confiscation and destruction of his legal property prevented him from amending
his state habeas corpus application. McIntosh acknowledged that he filed his
state habeas corpus application in 2002, and he alleged that he spent two to four
hours a day, five days a week, for four years researching the ineffective
assistance of counsel issue. McIntosh was able to raise the ineffective assistance
of counsel claim succinctly in the district court in the instant case without any
of the legal property that had been destroyed. Although McIntosh averred at the
Spears hearing that he needed his legal property because he knew nothing about
law and had to rely on other inmates to help him, he never explained how he
would have been able to amend his state habeas corpus application if he had his
legal property after it was first confiscated on October 16, 2007, given that he
was not able to amend it during the four years he allegedly spent working on the

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claim while his state habeas corpus application was pending.           McIntosh’s
conclusional allegation that the confiscation and destruction of his legal property
prevented him from amending his state habeas corpus application was
insufficient to state a constitutional claim under § 1983. See Wilson v. Budney,
976 F.2d 957, 958 (5th Cir. 1992).
      McIntosh did not plead “enough facts to state a claim to relief that [was]
plausible on its face.” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205
(5th Cir. 2007) (internal quotation marks and citation excluded). Accordingly,
the district court did not err in dismissing McIntosh’s complaint. See id.; 28
U.S.C. § 1915A(b).
      The district court’s dismissal of McIntosh’s complaint counts as a strike for
purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 388
(5th Cir. 1996). We caution McIntosh that if he accumulates three such strikes,
he will not be allowed to 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).
      AFFIRMED; SANCTION WARNING ISSUED.




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