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

                                                               FILED
                                                               April 17, 2008
                               No. 07-50814
                             Summary Calendar             Charles R. Fulbruge III
                                                                  Clerk

GUADALUPE GUAJARDO, JR

                                         Plaintiff-Appellant

v.

CHAIRPERSON CHRISTIN MELTON CRAIN, Texas Board of Criminal Justice;
DIRECTOR NATHANIEL QUARTERMAN, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION; SENIOR
WARDEN ALFRED JANICEK, Ellis Unit - Texas Department of Criminal
Justice - Correctional Institutions Division; SUPERVISOR KAREN MAHONE,
Law Library Ellis Unit - Texas Department of Criminal Justice - Correctional
Institutions Division

                                         Defendants-Appellees


                Appeal from the United States District Court
                     for the Western District of Texas
                          USDC No. 1:07-CV-143


Before STEWART, OWEN and SOUTHWICK, Circuit Judges.
PER CURIAM:*
     Guadalupe Guajardo, Jr., Texas prisoner # 170864, appeals the dismissal
as frivolous of his pro se, in forma pauperis 42 U.S.C. § 1983 complaint. He
contends that the defendants have in the past and may in the future impede his

     *
      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should not be published and is not precedent except under the limited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. 07-50814

access to the courts by threatening to confiscate his law books and legal
materials that exceed the storage space he has available. He has not established
a denial of access to the courts because he has not shown that his position as a
litigant was or will be prejudiced. See Lewis v. Casey, 518 U.S. 343, 350-53
(1996).
      Guajardo asserts that he is entitled to due process protection before his
property is confiscated. It is “highly dubious that a facially neutral prison
storage space limitation . . . might in any way restrict a prisoner’s exercise of
constitutional rights,” including the right of access to the courts, in light of the
limited storage space in a prison setting. Long v. Collins, 917 F.2d 3, 4 (5th Cir.
1990)(addressing prior version of the prison storage regulations). Guajardo has
not established that the district court abused its discretion in rejecting his
procedural due process claims. See Berry v. Brady, 192 F.3d 504, 507 (5th Cir.
1999). Guajardo has not challenged the basis for the district court’s denial of
relief on his allegations that the seizure of his books will result in a denial of
substantive due process, and any such claim is abandoned. See Brinkmann v.
Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
      Guajardo also contends that the fact that he must use some of his personal
locker to store legal materials constitutes a denial of equal protection. He has
not established that similarly situated individuals are being treated differently
or even that the defendants treat all prisoners actively engaged in litigation
differently from other prisoners. See Mayabb v. Johnson, 168 F.3d 863, 870 (5th
Cir. 1999); cf. Johnson v. Pfeiffer, 821 F.2d 1120, 1122-24 (5th Cir. 1987).
      Guajardo contends that he was entitled to a restraining order or injunction
to prevent possible future harm. He has not established, however, that success
on the merits is likely. See Women’s Med. Ctr. v. Bell, 248 F.3d 411, 419 n.15
(5th Cir. 1999). The district court did not abuse its discretion in denying the
requested relief. See White v. Carlucci, 862 F.2d 1209, 1211 (5th Cir. 1989).



                                         2
                                  No. 07-50814

      Guajardo’s appeal is without arguable merit and is thus frivolous. See
Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Accordingly, we dismiss
Guajardo’s appeal as frivolous. See 5TH CIR. R. 42.2. This dismissal of his appeal
as frivolous and the district court’s dismissal of his complaint as frivolous
constitute two strikes for the purposes of 28 U.S.C. § 1915(g). See Adepegba v.
Hammons, 103 F.3d 383, 388 (5th Cir. 1996). If Guajardo obtains three strikes,
he will not be able 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).
      APPEAL DISMISSED; SANCTION WARNING ISSUED.




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