     Case: 13-50685      Document: 00512501490         Page: 1    Date Filed: 01/15/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-50685
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         January 15, 2014
JAMES ALLEN LEE,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellant

v.

JENNIFER SMITH, Mail Systems Coordinator; MARGY AMAYA, Unit
Mailroom Supervisor; MICHAEL MCDONALD; ISMAY MCDONALD;
WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISON,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:12-CV-834


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       James Allen Lee, Texas prisoner # 860879, moves for leave to proceed in
forma pauperis (IFP) to appeal the district court’s dismissal of his 42 U.S.C.
§ 1983 complaint for failure to state a claim upon which relief can be granted.
Lee argues that he was denied his constitutional rights under the First and


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-50685

Fourteenth Amendments when the defendants placed his two daughters on his
negative mailing list. He also asserts that the defendants were not entitled to
qualified immunity.    However, because the district court did not base its
dismissal on qualified immunity, we do not address that issue.
      By moving to proceed IFP, Lee is challenging the district court’s
certification that his appeal is not taken in good faith under 28 U.S.C.
§ 1915(a)(3). See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our
inquiry into an appellant’s good faith “is limited to whether the appeal involves
legal points arguable on their merits (and therefore not frivolous).” Howard v.
King, 707 F.2d 215, 220 (5th Cir. 1983) (internal quotation marks and citation
omitted).
      Lee has failed to demonstrate that the board’s policy bears no rational
relation to a legitimate penological interest. See Turner v. Safley, 482 U.S. 78,
89 (1987); Prison Legal News v. Livingston, 683 F.3d 201, 216, 222 (5th Cir.
2012). Thus, he has failed to show that the placement of his children on the
negative mailing list ran afoul of his constitutional rights. See Samford v.
Dretke, 562 F.3d 674, 678-82 (5th Cir. 2009). Further, although he asserts that
the defendants’ actions deprived him of due process, he has not alleged that he
was denied any procedural safeguards. See Procunier v. Martinez, 416 U.S.
396, 417 (1974), overruled on other grounds by Thornburgh v. Abbott, 490 U.S.
401, 413-14 (1989).
      Because Lee has failed to raise a nonfrivolous issue for appeal, his motion
for leave to proceed IFP on appeal is DENIED, and his appeal is DISMISSED
as frivolous. 5TH CIR. R. 42.2. His motion for the appointment of counsel also
is DENIED.
      The district court’s dismissal of Lee’s § 1983 complaint for failure to state
a claim on which relief may be granted and the dismissal of this appeal as



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                                  No. 13-50685

frivolous count as strikes under § 1915(g).        See § 1915(g); Adepegba v.
Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Lee is WARNED that if he
accumulates three strikes, he will not be allowed to proceed IFP 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).




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