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 2001-07

Williams v. Cook ( 2001 )


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  •            UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-41271
Summary Calendar
R. THOMAS WILLIAMS,
Plaintiff-Appellant,
versus
LINDA COOK, Administrative Technician II;
KENNETH SULEWSKI, Captain; SHIRLEY BRAY,
Clerk III; APRIL CATOE, Clerk III;
SABRINA GOODIN, Clerk III; MCKINLEY J.
MCLAUGHLIN, Administrative Technician II;
NORA VONDRA, Clerk III; RICKY FLASOWSKI,
Lieutenant; MELTON BROCK, Warden; JAMES M.
SESSIONS, Investigator II; JOSEPH CONARROE,
Investigator II; LELAND HEUSZEL, Warden;
SHARON B. KEILIN, Assistant Director for
Support Administration; “BL”, Regional
Director Coordinators Level; KENT RAMSEY,
Assistant Director Regional I; PRISCILLA
DALY, Assistant Regional I Director; “GM”,
Department Director Level; MARK BULL,
Assistant to Department Director of Operations;
MARSHALL HERKLOTZ, Assistant Director
Laundry/Food Service; LINDA PATTESON, Head
Administrator MSCP, Mail Systems Coordinators Panel;
UP DOE, Department Director Level; UP2 DOE,
Department Director Level; JAMES A. SHAW, Warden;
CHARLES L. SMITH, Department Director Level;
JUNE GROOM, Warden I; MICHAEL COUNTZ, Assistant
Director of Programs & Records; CHARLES MARTIN,
Lieutenant, Warden I; LINDBERG ARNOLD, Warden 2;
JAMES WILLETS, Warden I; MIKE HALL, Warden 2; L.N.
HODGES, Warden 2; TIM SIMMONS, Warden 2; GROVER
GOODWELL, Warden 2; PAULA ABLS, Purchaser II;
LARI BENDER, Correctional Officer III; JOHN WELLS,
Correctional Officer III; DENIS CRIVELLO,
Correctional Officer III; OTTIE THORNTON,
Correctional Officer III,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Texas
(9:97-CV-189)
June 29, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
R. Thomas Williams, Texas prisoner # 650233, appeals, pro se,
the dismissal of his in forma pauperis and pro se
    42 U.S.C. § 1983
    complaint as frivolous and for failure to state a claim pursuant to
    28 U.S.C. § 1915
    (e)(2).
Williams maintains his claim that his legal mail had been
repeatedly opened outside his presence was timely because he first
filed an action on this claim in 1996 and that complaint was
dismissed   without   prejudice.    While   the    filing   of   an   action
normally tolls the statute of limitations, its dismissal without
prejudice leaves the plaintiff in the same position as if the
action had never been filed.       Lambert v. United States,
    44 F.3d 296
    , 298 (5th Cir. 1995).     Therefore, the district court did not
err in dismissing this claim as time-barred.          Gonzales v. Wyatt,
    157 F.3d 1016
    , 1019-20 (5th Cir. 1998).
Williams also contends that the district court improperly
found that his letters to the Rev. Sherman Williams and David
Chalfant contained inappropriate language.         “[I]n determining the
constitutional validity of prison practices that impinge upon a
prisoner’s rights [to free speech] with respect to mail, the
appropriate inquiry in whether the practice is reasonably related
to a legitimate, penological interest”.           Brewer v. Wilkinson,
    3 F.3d 816
    , 824 (5th Cir. 1993), cert. denied,
    510 U.S. 1123
     (1994).
*
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
The record does not support Williams’ claim that the letter to the
Rev.    Williams   did   not   contain        threatening    language      (at   the
disciplinary hearing, Williams did not refute the charge that the
letter stated he would “gladly murder” prison employee/correctional
officer Adams), and Williams has failed to show exhaustion of his
administrative remedies with respect to the Chalfant letter.                      42
U.S.C. § 1997e(a); Sojourner T v. Edwards,
    974 F.2d 27
    , 30 (5th
Cir. 1992) (court of appeals can affirm judgment on any grounds
supported by record), cert. denied,
    507 U.S. 972
     (1993).
Williams’   claim    that     he   was    denied    due   process    at   the
disciplinary hearing, if credited, necessarily implies that his
sentence for the disciplinary case was invalid, thus affecting the
duration of his confinement.          Because Williams has not shown that
the disciplinary case has been overturned, he cannot maintain a
    42 U.S.C. § 1983
     action against the defendants for damages.                   See Heck
v. Humphrey,
    512 U.S. 477
    , 486-87 (1995); Edwards v. Balisok,
    520 U.S. 641
    , 648 (1997).
Finally, Williams’ retaliation claims fail as a matter of law
because Williams has failed to show that the actions of Lari Bender
and    Paula   Ables   would   not    have      occurred    absent   the   alleged
retaliatory motive.        Woods v. Smith,
    60 F.3d 1161
    , 1166 (5th Cir.
1995), cert. denied,
    516 U.S. 1084
     (1996).
AFFIRMED
3