William Frey v. Natalie Buckingham , 554 F. App'x 340 ( 2014 )

Case: 13-40333 Document: 00512532748 Page: 1 Date Filed: 02/14/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-40333 February 14, 2014
Summary Calendar
Lyle W. Cayce
Clerk
WILLIAM WALLACE FREY,
Plaintiff - Appellant
v.
NATALIE L. BUCKINGHAM; JOHN E. RAGSDALE; JOEL R. WATKINS;
NEAL D. WEBB; SHELY S. BALDWIN; KORTNEY L. ALEXANDER; RICK
THALER; C. LAWSON,
Defendants - Appellees
Appeals from the United States District Court
for the Eastern District of Texas
USDC No. 6:12-CV-579
Before JONES, BARKSDALE, and HAYNES, Circuit Judges.
PER CURIAM: *
Proceeding pro se and in forma pauperis, William Wallace Frey, Texas
inmate # 1718159, appeals the dismissal of his civil-rights complaint, pursuant
to 28 U.S.C. § 1915A(b)(1) (providing for dismissal of any claim that is
“frivolous . . . or fails to state a claim upon which relief can be granted”).
Although our precedent is inconsistent as to the standard of review for such
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 13-40333
dismissals (whether de novo or for abuse of discretion), we need not resolve the
discrepancy because Frey fails to show reversible error under the more
stringent de novo standard, applicable to dismissals under Federal Rule of
Civil Procedure 12(b)(6). See Morris v. McAllester, 702 F.3d 187, 189 (5th Cir.
2012); Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998).
Frey sued Natalie L. Buckingham, John E. Ragsdale, Joel R. Watkins,
and Kortney L. Alexander for their roles in a disciplinary matter, which
resulted in a disciplinary conviction for threatening an officer. At the Spears
hearing conducted by a magistrate judge, Frey admitted he lost no good time
credits as a result of the disciplinary conviction. The 20-day commissary-and-
recreation restrictions imposed on Frey “are in fact merely changes in the
conditions of his confinement and do not implicate due process concerns”.
Madison v. Parker, 104 F.3d 765, 768 (5th Cir. 1997). Because the
punishments imposed do not implicate a liberty interest, Frey fails to state a
civil-rights claim concerning his disciplinary proceedings.
Following his disciplinary hearing, Frey filed Step 1 and Step 2
grievances, which were denied by defendants Neal D. Webb and C. Lawson,
respectively. Frey’s contention, that these defendants violated his
constitutional rights by failing to investigate his grievances, fails to state a
claim upon which relief can be granted. E.g., Geiger v. Jowers, 404 F.3d 371,
373–74 (5th Cir. 2005).
Frey also contends defendant Shely S. Baldwin violated his right of
access to the courts primarily by limiting his legal “co-sessions” with another
inmate to 20 minutes and denying access to a book he wished to consult before
filing his civil-rights complaint. Frey was able, nevertheless, to access the law
library, pursue grievances, and file his civil-rights complaint in a timely
manner. His allegations fail to establish that he suffered an actual injury;
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therefore, he has not stated a claim for denial of access to the courts. See Lewis
v. Casey, 518 U.S. 343, 349–53 (1996).
Similarly, Frey contends Baldwin retaliated against him for filing
grievances through the same limitations discussed above, as well as by
refusing to provide envelopes on at least one occasion. Even if motivated by
retaliatory intent, these adverse actions are de minimis and are not sufficient
to “deter[] a person of ordinary firmness from further exercising his
constitutional rights”. Morris v. Powell, 449 F.3d 682, 686 (5th Cir. 2006). Frey
therefore fails to state a retaliation claim.
Further, to the extent Frey, during the Spears hearing, raised a claim of
retaliation based on events that occurred after he filed his complaint, he fails
to state a claim upon which relief could be granted because he alleged only
adverse acts of a de minimis degree. See id. Any error in failing to consider
this claim does not constitute reversible error.
Finally, having failed to state a claim against any other defendant, Frey’s
claim against Rick Thaler for failure to supervise likewise fails. See Becerra v.
Asher, 105 F.3d 1042, 1047–48 (5th Cir. 1997).
The district court’s dismissal as frivolous and for failure to state a claim
counts as a strike under 28 U.S.C. § 1915(g) (barring future in forma pauperis
actions following certain prior dismissals). See Adepegba v. Hammons, 103
F.3d 383, 387 (5th Cir. 1996). Frey is hereby cautioned that once he
accumulates three strikes he may not proceed in forma pauperis in any civil
action or appeal “while incarcerated or detained in any facility . . . unless [he]
is under imminent danger of serious physical injury”. 28 U.S.C. § 1915(g).
AFFIRMED; SANCTIONS WARNING ISSUED.
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