Cardona v. Menifee, et al, No. 07-30483 (5th Cir. 2007)
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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 07-30483 Conference Calendar December 11, 2007 Charles R. Fulbruge III Clerk JOSE CRISTOBAL CARDONA Plaintiff-Appellant v. F MENIFEE; K MONTGOMERY Defendants-Appellees Appeal from the United States District Court for the Western District of Louisiana USDC No. 1:06-CV-1705 Before REAVLEY, BARKSDALE, and GARZA, Circuit Judges. PER CURIAM:* Jose Cristobal Cardona, federal prisoner # 40869-080, appeals from the dismissal of his Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), action as frivolous and for failure to state a claim. Cardona contends that he had a First Amendment right to correspond with a prisoner in another institution whom he purported to represent as a next friend in that other prisoner s 28 U.S.C. § 2255 action. Cardona did not establish 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-30483 status as a next friend in the other prisoner s proceeding, see Whitmore v. Arkansas, 495 U.S. 149, 164 (1990); Magallon v. Livingston, 453 F.3d 268, 271 (5th Cir.), cert. denied, 126 S. Ct. 2974 (2006); his First Amendment claim rests on a flawed factual premise. Moreover, Cardona has no general First Amendment right to communication with prisoners in other prison units. See Turner v. Safely, 482 U.S. 78, 91 (1987). Cardona s appeal is without arguable merit and is frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Because the appeal is frivolous, it is dismissed. See 5TH CIR. R. 42.2. The district court s dismissal of Cardona s action and this court s dismissal of his appeal count as two strikes under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). The district court s dismissal and this court s dismissal of the appeal in Cardona v. Tuite, No. 07-30041 (5th Cir. Dec. 10, 2007) (unpublished), also count as two strikes under § 1915(g). Id. As Cardona has now accumulated at least three strikes, he is barred from proceeding in forma pauperis pursuant to § 1915 while he is incarcerated or detained in any facility unless he is under imminent danger of serious physical injury. See § 1915(g). APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR IMPOSED. 2
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