Westbrook v. Treon , 78 F. App'x 970 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS October 27, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-10004
Summary Calendar
JEFFREY D. WESTBROOK,
Plaintiff-Appellant,
versus
ROBERT R. TREON, Senior Warden; JAMES
D. MOONEYHAM, Assistant Warden; RICHARD
E. WATHEN, Assistant Warden; LEE A. SPEARS,
Law Library Supervisor; ROY MONROE; Law
Library Officer; GARY JOHNSON, Texas Department
of Criminal Justice, Executive Director; JANIE
COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION, FRANK HOKE,
Texas Department of Criminal Justice, Access
to Courts Director; JOHN M. MORIARTY, Texas
Department of Criminal Justice, Inspector
General; JOHN DOE, Texas Department of Criminal
Justice, Region V. Director,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 7:02-CV-222-R
--------------------
Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.
PER CURIAM:*
Jeffrey Westbrook, Texas prisoner # 670281, appeals the
district court’s dismissal as frivolous of his 42 U.S.C. § 1983*
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that this opinion should not be published and is not precedent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. 03-10004
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action. He has moved to supplement his appellate brief. This
motion is GRANTED as to Westbrook’s request to add copies of his
personal grievances that he had filed; the motion is otherwise
DENIED.
Westbrook contends that he set forth a meritorious claim
regarding the defendants’ denial of his access to the courts
through the denial of access to the law library and legal
materials. Because Westbrook has not shown an actual injury
through prejudice as a litigant, he is not entitled to relief on
this ground. See Lewis v. Casey, 518 U.S. 343, 349-51 (1996).
Westbrook also alleges that he was denied access to legal
materials in retaliation for filing grievances. As he has
alleged a “chronology of events from which retaliation may
plausibly be inferred,” he has presented a colorable claim under
42 U.S.C. § 1983. See Woods v. Smith, 60 F.3d 1161, 1166 (5th
Cir. 1995). The district court’s judgment is therefore VACATED
as to Westbrook’s claim that defendants Treon, Mooneyham, Watham,
Spears, and Monroe retaliated against him for filing a grievance
by denying him access to the law library and to legal materials.
As Westbrook does not allege personal involvement by the other
defendants as to this claim, he is not entitled to relief against
them. See Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983).
Westbrook maintains that the district court should have
ordered the defendants not to seize or destroy his personal law
books, as they had threatened to do. Verbal threats do not rise
No. 03-10004
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to the level of a constitutional violation. See Calhoun v.
Hargrove, 312 F.3d 730, 734 (5th Cir. 2002). To the extent that
Westbrook’s personal possessions have been seized, his proper
remedy is in the state courts. See Cathey v. Guenther, 47 F.3d
162, 164 (5th Cir. 1995); Sheppard v. Louisiana Bd. of Parole,
873 F.2d 761, 763 (5th Cir. 1989). Westbrook’s allegation that
the threats and seizures were made for retaliatory purposes are
conclusional and do not set forth a chronology establishing
retaliatory motivations. See Woods, 60 F.3d at 1166.
Westbrook contends that the district court did not rule on
the merits of his claims presented during the Spears hearing.
The court did conclude that Westbrook’s challenges to the
conditions of his confinement were without merit. Moreover,
Westbrook cannot show that the district court abused its
discretion in denying relief on these claims. Westbrook’s
allegation that other prisoners were denied the right to possess
photographs does not establish that Westbrook was denied a
constitutional right. 42 U.S.C. § 1983. Westbrook’s allegation
that the defendants tampered with his legal mail is frivolous; he
admits that the “legal mail” in question did not in fact involve
a legal issue. As for Westbrook’s assertion that he was not
allowed to see the evidence supporting his placement in a
security threat group and that he was required to undergo
Christian-based training to renounce his threat group status, he
has presented evidence establishing that he did not exhaust his
No. 03-10004
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remedies with respect to these claims before they were presented.
See 42 U.S.C. § 1997e(a). Because Westbrook did not exhaust his
remedies as to this claim, the judgment of the district court is
MODIFIED to reflect that the dismissal of these claims is without
prejudice. The district court did not abuse its discretion in
denying Westbrook’s motion to amend or his motions for
reconsideration. See Jones v. Central Bank, 161 F.3d 311, 312
(5th Cir. 1998); Briddle v. Scott, 63 F.3d 364, 379 (5th Cir.
1995).
Westbrook asserts that the district court abused its
discretion in denying relief on his challenges to his prison
disciplinary proceedings. Westbrook has not established that he
suffered a constitutional violation in his placement in punitive
administrative segregation. See Sandin v. Conner, 515 U.S. 472,
474, 485 (1995); Malchi v. Thaler, 211 F.3d 953, 959 (5th Cir.
2000). Westbrook also contends that the disciplinary case was
brought to retaliate against him for filing the instant lawsuit.
As he admits to having used questionable language in his
grievance, he has not shown that the disciplinary action would
not have been filed but for a retaliatory motivation. Woods, 60
F.3d at 1166.
Westbrook’s two motions for temporary restraining orders are
DENIED. FED. R. APP. P. 8(a)(1)(C); Greene v. Fair, 314 F.2d 200,
202 (5th Cir. 1963). Westbrook has not shown extraordinary
circumstances warranting the appointment of counsel, and this
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motion is also DENIED. See Ulmer v. Chancellor, 691 F.2d 209,
212 (5th Cir. 1982).
AFFIRMED IN PART; VACATED AND REMANDED IN PART; JUDGMENT
MODIFIED IN PART; MOTION TO SUPPLEMENT APPELLATE BRIEF GRANTED IN
PART; MOTIONS FOR APPOINTMENT OF COUNSEL AND FOR TEMPORARY
RESTRAINING ORDERS DENIED.