Hailey v. Savers , 240 F. App'x 670 ( 2007 )


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  •                                                        United States Court of Appeals
    Fifth Circuit
    F I L E D
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT                   July 18, 2007
    Charles R. Fulbruge III
    Clerk
    No. 06-10610
    Summary Calendar
    TONY LYNN HAILEY,
    Plaintiff-Appellant,
    versus
    MICHAEL SAVERS, Assistant Warden; AMY LOWREY, Counsel
    Substitute; DENNIS J. MARKGRAFF, Captain; EDEN GREEN,
    Grievance Investigator; TERRY BUCK, Mailroom Supervisor;
    LISA CONNERS, Grievance Investigator; DAVIDE BASS, Doctor;
    ROBERTA HOLLERS, Nurse; PATRICE MAXEY, Medical Administrator;
    GARY MESSER; HELEN HARRISON,
    Defendants-Appellees.
    --------------------
    Appeal from the United States District Court
    for the Northern District of Texas
    USDC No. 2:05-CV-297
    --------------------
    Before HIGGINBOTHAM, DAVIS, and CLEMENT, Circuit Judges.
    PER CURIAM:*
    Tony Lynn Hailey, Texas prisoner # 911414, proceeding in
    forma pauperis and pro se, appeals from the district court’s
    dismissal with prejudice of his 
    42 U.S.C. § 1983
     civil rights
    complaint as frivolous and for failure to state a claim.       In his
    complaint, Hailey argued that numerous officials at the Texas
    Department of Criminal Justice (TDCJ) Dalhart Unit retaliated
    *
    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    this opinion should not be published and is not precedent except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. 06-10610
    -2-
    against him for filing grievances, engaged in acts of deliberate
    indifference to his safety and medical needs, conspired against
    him, and denied him access to the courts.   Our review is de novo.
    Geiger v. Jowers, 
    404 F.3d 371
    , 373 (5th Cir. 2005).
    Retaliation
    Hailey asserts that Savers retaliated against him and found
    him guilty of a disciplinary violation because Hailey mailed to
    the regional director of the prison unit an amendment to a life
    endangerment complaint that alleged misconduct by Savers and
    other prison officials.   Hailey contends that he was punished
    with 15 days in solitary confinement, 30 days without recreation
    or commissary privileges, and a reduction in line class status.
    Hailey’s punishments are not the type of hardships that give
    rise to a liberty interest protected by due process.   See Madison
    v. Parker, 
    104 F.3d 765
    , 768 (5th Cir. 1997).   Hailey’s claim
    concerning Savers’s disciplinary reports does not implicate
    Hailey’s constitutional rights.   See Castellano v. Fragozo, 
    352 F.3d 939
    , 942 (5th Cir. 2003).
    Deliberate indifference
    Hailey asserts that Savers was aware of grievances regarding
    nerve damage and pain in Hailey’s back and knees and that Savers
    acted with deliberate indifference to Hailey’s inability to
    perform field work.   Hailey contends that Savers did not act in
    accordance with his supervisory responsibilities and did not
    relieve Hailey from his assigned work detail.   Hailey’s
    No. 06-10610
    -3-
    conclusional allegations are insufficient to establish that
    Savers knew of and disregarded the risk that Hailey would suffer
    injury if he was not assigned to a different work detail.     See
    Domino v. Texas Dep’t of Criminal Justice, 
    239 F.3d 752
    , 756 (5th
    Cir. 2001); Koch v. Puckett, 
    907 F.2d 524
    , 530 (5th Cir. 1990)
    Hailey argues that Dr. Basse, a physician at the Dalhart
    Unit, and Maxey, a medical administrator at the Dalhart Unit,
    acted with deliberate indifference to his medical needs.    Hailey
    argues that although Basse did not assign Hailey to field work,
    Basse had a duty to reimpose a work restriction for Hailey to
    prevent harm to his injured back and knee.    Hailey argues that
    Maxey failed to intervene as a supervisor after he was notified
    of Hailey’s grievances against Basse.
    Hailey does not brief the district court’s conclusion that
    Basse was unaware of any risk of harm from Hailey’s job
    assignment.   Rather, Hailey argues only in a conclusional fashion
    that Basse should have imposed a work restriction after he became
    aware of Hailey’s pain.   See Domino, 
    239 F.3d at 756
    .    To the
    extent that Hailey sues Maxey in his role as a supervisor, Hailey
    has failed to allege specific facts to demonstrate that Maxey had
    personal involvement in placing Hailey in a job assignment that
    posed a substantial risk of harm or that Maxey implemented
    policies to physically harm Hailey.     See Thompkins v. Belt, 
    828 F.2d 298
    , 303-04 (5th Cir. 1987).
    No. 06-10610
    -4-
    Conspiracy
    Hailey contends that Lowrey, a substitute counsel employed
    by the Dalhart Unit, conspired with Savers and did not
    investigate Hailey’s claims and present a reasonable defense at
    Hailey’s disciplinary hearing.   Hailey asserts that Markgraff
    discovered that he had been included in Hailey’s life
    endangerment amendment letter and conspired with other prison
    officials to retaliate against Hailey for filing a disciplinary
    complaint.   Hailey asserts that Markgraff was not an impartial
    disciplinary hearing officer.
    Hailey’s conclusional allegations against Lowrey and
    Markgraff do not include facts sufficient to support a conspiracy
    claim.   See Rodriguez v. Neeley, 
    169 F.3d 220
    , 222 (5th Cir.
    1999); Koch v. Puckett, 
    907 F.2d 524
    , 530 (5th Cir. 1990).
    Further, Hailey’s punishment as a result of the disciplinary
    proceedings do not implicate a liberty interest.    See Madison,
    
    104 F.3d at 768
    .
    Hailey argues that Green and Conners, grievance
    investigators at the Dalhart Unit, participated in a conspiracy
    to retaliate against him.   He argues that Green falsified the
    receipt date on Hailey’s grievance appealing his disciplinary
    punishment and that Conners refused to file his grievance.
    Hailey provides no material facts in support of his claim that
    Green and Conners acted maliciously with respect to the filing of
    his grievances.    See Al-Ra’id v. Ingle, 
    69 F.3d 28
    , 32 (5th Cir.
    No. 06-10610
    -5-
    1995)(generalized assertions and conclusional allegations are
    insufficient to establish malice).    Moreover, any failure of
    these defendants to comply with the TDCJ filing procedures is
    insufficient to establish a constitutional violation.     See
    Jackson v. Cain, 
    864 F.2d 1235
    , 1251-52 (5th Cir. 1989).     To the
    extent that Hailey seeks to raise an independent claim of
    malicious prosecution against Green, this claim is non-actionable
    under § 1983.   See Castellano, 
    352 F.3d at 942
    .
    Access to the courts
    Hailey argues that Buck, a mailroom supervisor at the
    Dalhart Unit, violated Hailey’s right of access to the courts by
    failing to prevent the opening of Hailey’s mail.    Hailey does not
    allege personal involvement on the part of Buck, nor does Hailey
    allege that Buck implemented policies to infringe upon Hailey’s
    constitutional rights.   See Thompkins v. Belt, 
    828 F.2d 298
    , 303-
    04 (5th Cir. 1987).   Hailey’s claim of supervisory liability is
    non-actionable under § 1983.     See Alton v. Texas A & M Univ., 
    168 F.3d 196
    , 200 (5th Cir. 1999).    Further, Hailey does not allege
    prejudice as a result of any interference with his mail.        See
    McDonald v. Steward, 
    132 F.3d 225
    , 230-31 (5th Cir. 1998).
    Hailey does not brief sufficiently the district court’s
    dismissal of his claims of conspiracy against Messer, Harrison,
    and of deliberate indifference against Hollers.    Hailey also does
    not renew his amended claims that Savers denied various
    grievances and that Buck delayed and opened his legal mail.
    No. 06-10610
    -6-
    These claims are thus abandoned.    See Brinkmann v. Dallas County
    Deputy Sheriff Abner, 
    813 F.2d 744
    , 748 (5th Cir. 1987).
    Accordingly, the district court did not err in dismissing
    Hailey’s § 1983 claims.   See Geiger, 
    404 F.3d at 373
    .
    Hailey’s appeal is without arguable merit, is frivolous, and
    is dismissed.   See 5TH CIR. R. 42.2.   The dismissal of Hailey’s
    § 1983 complaint and the instant dismissal each count as a strike
    for purposes of 
    28 U.S.C. § 1915
    (g).     See Adepegba v. Hammons,
    
    103 F.3d 383
    , 387-88 (5th Cir. 1996).      Hailey is warned that if
    he accumulates three strikes, he may no longer 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).
    APPEAL DISMISSED; SANCTION WARNING ISSUED.