114 F3d 1191 Higgason v. Cottrell

114 F.3d 1191

James H. HIGGASON, Jr., Plaintiff-Appellant,
Norman COTTRELL, et al., Defendants-Appellees.

No. 96-3949.

United States Court of Appeals, Seventh Circuit.

Submitted May 22, 1997.*
Decided May 22, 1997.

NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.

Before POSNER, Chief Circuit Judge, and CUMMINGS and BAUER, Circuit Judges.


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James Higgason is an inmate at Indiana's Wabash Valley Correctional Institution. The district court dismissed as frivolous his civil rights action filed under 42 U.S.C. § 1983, in which he complains that he has a Fourth and Eighth Amendment privacy right to be naked in his cell when sleeping, washing, using the toilet and masturbating. See 28 U.S.C. § 1915(d). Higgason's appeal of the denial of this claim is obviously frivolous. The Fourth Amendment does not extend to an inmate's cell. Hudson v. Palmer, 468 U.S. 517, 525-28 (1984); Johnson v. Phelan, 69 F.3d 144, 146 (7th Cir.1995). The Eighth Amendment is also irrelevant. For an inmate to prevail on a claim of cruel and unusual punishment, he must establish a deprivation that is "objectively, 'sufficiently serious' " Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citation omitted), resulting in the "denial of 'the minimal civilized measure of life's necessities.' " Id. (citation omitted). Higgason's claims do not even begin to approach this threshold.


The district court noted that Higgason had presented the same claims on two previous occasions, and each time the case was judged "legally frivolous." See Higgason v. Cottrell, IP 95-528-C-B/S (S.D.Ind. May 18, 1995) and Higgason v. Cottrell, TH 95-133-C-T/H (S.D.Ind. August 10, 1995). We also observe that Higgason filed an appeal in this court that was determined to be frivolous, see Higgason v. Barnes, No. 95-3175, (7th Cir. Aug. 1, 1996). Higgason, therefore, accrued three "strikes" before even filing the present frivolous action and is thereby stripped of in forma pauperis status. See 28 U.S.C. § 1915(g); see also Moore v. Pemberton, 110 F.3d 22 (7th Cir.1997) ("[This case] is transparently frivolous.... Because it is frivolous, it also counts as a "strike" under § 1915(g)."); Abdul-Wadood v. Nathan, 91 F.3d 1023 (7th Cir.1996).




On January 15, 1997, this court granted the appellees' Motion for an Order of Non-Involvement Due to Lack of Service in the Trial Court. After an examination of the briefs and the record, we have concluded that oral argument is unnecessary; accordingly, the appeal is submitted on the briefs and the record. See Fed.R.App.P. 34(a); Cir.R. 34(f)