Thomas v. Wakefield ( 2002 )


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  •                       IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 01-11010
    Summary Calendar
    ALLEN GLENN THOMAS,
    Plaintiff-Appellant,
    versus
    GARY A, WAKEFIELD, Major; NORMA HARRISON, Industrial Specialist VI; THOMAS R.
    SULLIVAN, Lieutenant; GREGORY OLIVER, Major; EMILY JACOBS, Classification;
    ROBERT KELLEHER, Grievance Investigator; CHARLIE G. HATFIELD, III, Industrial;
    BUCKY R. SHERLEY, Industrial Supervisor III; RICHARD A. AVANTS, Captain; MARIO V.
    SANCHEZ, Sergeant; EMILY L. BOND, Assistant Warden; ROBERT J. EASON, Warden;
    DOYLE MCELVANEY, Warden,
    Defendants-Appellees.
    ------------------------------------------------------------
    Appeal from the United States District Court
    for the Northern District of Texas
    USDC No. 1:00-CV-25-C
    ------------------------------------------------------------
    April 22, 2002
    Before JOLLY, STEWART and PARKER, Circuit Judges:
    PER CURIAM:*
    Allen Glenn Thomas (TDCJ # 633145) appeals the dismissal as frivolous of his pro se and in
    forma pauperis (IFP) civil rights complaint in which he alleged that defendants had retaliated against
    him for filing grievances by requiring him to work in the garment factory, thereby allegedly placing
    his life in danger from medium-security prisoners and violating his medical restrictions, and had filed
    false disciplinary cases against him, threatened and harassed him, and denied him medical treatment.
    *
    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 R. 47.5, the court has determined that this opinion should not be
    published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    He has filed motions for a protective order, transfer order, discovery, and appointment of counsel.
    The motions are DENIED.
    The district court shall dismiss a prisoner’s IFP civil rights complaint if the court determines that
    the action is frivolous or fails to state a claim upon which relief may be granted. Black v. Warren,
    
    134 F.3d 732
    , 733 (5th Cir. 1998); see 28 U.S.C. § 1915(e)(2)(B)(i) & (ii), § 1915A. A complaint
    is frivolous if it lacks an arguable basis in law or fact. Berry v. Brady, 
    192 F.3d 504
    , 507 (5th Cir.
    1999). We review the dismissal of a prisoner’s complaint as frivolous for an abuse of discretion.
    
    Berry, 192 F.3d at 507
    .
    The record does not support Thomas’s assertion that the district court abused its discretion in
    dismissing the complaint because the dismissal was based on credibility determinations, nor does the
    record support his assertion that the district court resolved factual disputes against him.
    Thomas argues that the district court abused its discretion by failing to construe the complaint
    as asserting a viable Eighth Amendment failure-to-protect claim and a retaliation claim. Thomas
    alleged no facts showing that he had been threatened by prisoners working in the garment factory or
    that prison officials were aware of facts from which the inference could be drawn that a substantial
    risk of serious harm to Thomas existed by virtue of his job assignment. Thus, the district court did
    not err in determining that this claim was meritless. See Farmer v. Brennan, 
    511 U.S. 825
    , 837
    (1994); Jacquez v. Procunier, 
    801 F.2d 789
    , 792 (5th Cir. 1986). Thomas's conclusional assertions
    of retaliation do not establish that but for a retaliatory motive, Thomas would not have been
    disciplined for refusing to work. See Woods v. Smith, 
    60 F.3d 1161
    , 1166 (5th Cir. 1995).
    Thomas's complaint contained only conclusional allegations that his assignment to the garment
    factory violated his medical restrictions; he alleged no facts clearly evincing that the work in the
    garment factory was beyond his physical abilities and that his assignment to the garment factory
    amounted to deliberate indifference to his medical needs, and thus the district court did not abuse its
    discretion in dismissing this claim. See Johnson v. Treen, 
    759 F.2d 1236
    , 1238 (5th Cir. 1985).
    2
    The district court did not abuse its discretion in determining that Thomas's claims of
    harassment were not actionable under 42 U.S.C. § 1983. Verbal threats and name-calling by prison
    guards do not amount to a constitutional violation. See Bender v. Brumley, 
    1 F.3d 271
    , 274 n.4 (5th
    Cir. 1993); Lynch v. Cannatella, 
    810 F.3d 1363
    , 1376 (5th Cir. 1987).
    Because Thomas's appeal is without arguable merit and is frivolous, it is DISMISSED. See
    Howard v. King, 
    707 F.2d 215
    , 219-20 (5th Cir. 1983); 5TH CIR. R. 42.2.
    The dismissal of this appeal and the district court's dismissal of this lawsuit as frivolous count
    as two strikes for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons,
    
    103 F.3d 383
    , 388 (5th Cir. 1996). Thomas is WARNED that if he accumulates three strikes he will
    not be allowed to proceed IFP in any civil action or appeal brought in a United States court while he
    is incarcerated or detained in any facility unless he is under imminent danger of serious physical injury.
    See 28 U.S.C. § 1915(g).
    APPEAL DISMISSED AS FRIVOLOUS; MOTIONS DENIED; 28 U.S.C. § 1915(g)
    SANCTIONS WARNING ISSUED.
    3