     Case: 10-20462   Document: 00511766290   Page: 1   Date Filed: 02/23/2012




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

                                                                  FILED
                                                              February 23, 2012
                                No. 10-20462
                              Summary Calendar                   Lyle W. Cayce
                                                                      Clerk

GARY L. KENNEDY,

                                          Plaintiff-Appellant

v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION; CHARLES A. WILLIAMSON,
Senior Warden, Texas Department of Criminal Justice - Correctional
Institutions Division, Thomas Goree Unit; DAVID C. BONE, Assistant Warden,
Texas Department of Criminal Justice - Correctional Institutions Division,
Thomas Goree Unit; PATRICK M. MARION, Major of Corrections, Texas
Department of Criminal Justice - Correctional Institutions Division, Thomas
Goree Unit; KENNETH JONES, Captain of Corrections, Texas Department of
Criminal Justice - Correctional Institutions Division, Thomas Goree Unit;
DOROTHEIA L. ROBERTS, Lieutenant of Corrections, Texas Department of
Criminal Justice - Correctional Institutions Division, Thomas Goree Unit;
KENDRA D. SHELLY, Case Manager II, Texas Department of Criminal Justice
- Correctional Institutions Division, Thomas Goree Unit; CHEYENNE C. SHAW,
Unit Grievance Director, Texas Department of Criminal Justice - Correctional
Institutions Division, Thomas Goree Unit; T. RODDEY, Regional Grievance
Coordinator, Texas Department of Criminal Justice - Correctional Institutions
Division, Thomas Goree Unit; JOHN W. CHRISTIAN,

                                          Defendants-Appellees


                  Appeal from the United States District Court
                       for the Southern District of Texas
                            USDC No. 4:10-CV-1878
   Case: 10-20462       Document: 00511766290         Page: 2     Date Filed: 02/23/2012

                                       No. 10-20462

Before JONES, Chief Judge, and PRADO and ELROD, Circuit Judges.
PER CURIAM:*
       Gary L. Kennedy, Texas prisoner # 610571, proceeding pro se and in forma
pauperis (IFP), appeals the district court’s judgment dismissing his 42 U.S.C.
§ 1983 suit, which raised claims connected to a disciplinary conviction that was
later overturned, as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). We
review this dismissal for an abuse of discretion. See Norton v. Dimazana,
122 F.3d 286, 291 (5th Cir. 1997). A district court abuses its discretion when its
decision is based on a legal error “or on a clearly erroneous assessment of the
evidence.” Tollett v. City of Kemah, 285 F.3d 357, 363 (5th Cir. 2002) (internal
quotation marks and citation omitted). Our review of Kennedy’s arguments
shows that he has not met this standard.
       Insofar as Kennedy contends that his placement in medium custody
infringed his constitutional rights, he is mistaken. See Malchi v. Thaler,
211 F.3d 953, 958-59 (5th Cir. 2000)); Luken v. Scott, 71 F.3d 192, 193-94 (5th
Cir. 1995). His argument concerning an alleged infringement of his procedural
rights likewise fails, as he has not shown that he was denied any of the process
due him in connection with this disciplinary proceedings.                     See Wolff v.
McDonnell, 418 U.S. 539, 563-65 (1974); Morgan v. Quarterman, 570 F.3d 663,
668 (5th Cir. 2009); Moody v. Miller, 864 F.2d 1178, 1180-81 (5th Cir. 1989).
Kennedy has not shown an abuse of discretion in connection with the district
court’s dismissal of his suit as frivolous. Consequently, the district court’s
judgment is AFFIRMED.
       Our opinion affirming the district court’s dismissal as frivolous of
Kennedy’s § 1983 complaint counts as a strike for purposes of § 1915(g). See
Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996). Kennedy is cautioned


       *
         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.

                                              2
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                                 No. 10-20462

that once he accumulates three strikes, he will not be able to proceed IFP in a
civil action or an appeal of a judgment in a civil action while incarcerated or
detained in any facility unless he demonstrates that he is under ?imminent
danger of serious physical injury.” § 1915(g).
                            AFFIRMED; SANCTION WARNING ISSUED.




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