Robinson v. Luker ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
NO. 98-40698
USDC NO. 6:97-CV-452
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ALLEN TYRONE ROBINSON,
Plaintiff-Appellant,
VERSUS
D LUKER, Lieutenant, Powledge Unit
Individually and in Official Capacity;
T MOORE, Lieutenant, Powledge Unit
Individually and in Official Capacity;
J JACKSON, Correctional Officer Powledge
Unit Individually and in Official Capacity;
P BRANHAM, Correctional Officer Powledge
Unit Individually and in Official Capacity;
T BUTLER, Correctional Officer Powledge
Unit Individually and in Official Capacity,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
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October 12, 1999
Before JOLLY and SMITH, Circuit Judges, and SARAH S. VANCE,*
District Judge.
PER CURIAM:**
Allen Tyrone Robinson appeals the dismissal of his civil
rights complaint as frivolous. We affirm.
*
District Judge of the Eastern District of Louisiana,
sitting by designation.
**
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that this opinion should not be published and is not precedent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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Robinson alleged in his complaint that Correctional Officers
J. Jackson, P. Branham and Lieutenant T. Moore violated prison
rules by disclosing that he had filed a grievance against Officer
Jackson and another inmate. He further alleged that Jackson,
Lieutenant D. Luker and Officer T. Butler retaliated against him
for filing the grievance against Jackson by filing two false
disciplinary charges against him. Specifically, he alleges that on
January 12, 1997, Lieutenant Luker told him that he was ordering
Officer Jackson to file a charge against Robinson for sexual
misconduct. Robinson claims the charge was false and made in
retaliation for his complaint against Jackson. Robinson alleges
that three months later Officer Butler filed a false charge against
him for being out of place, which he claims was also in retaliation
for the charge he filed against Jackson. Robinson suffered no
punishment on either disciplinary charge. After he filed the
grievance against Jackson, Robinson filed three more grievances
between January 12 and March 6, 1997, each of which he appealed to
the Regional Director.
On May 15, 1997, Robinson filed this pro se, in forma pauperis
civil rights action against defendants Luker, Jackson, Branham,
Butler and Moore under 42 U.S.C. § 1983. On recommendation of the
Magistrate Judge, the district court dismissed Robinson's complaint
as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and for
failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii). The
district court found that 42 U.S.C. § 1997(e) mandated dismissal
because Robinson failed to allege any physical injury.
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We review a dismissal under § 1915(e)(2)(B)(i) for abuse of
discretion. See Harper v. Showers, 174 F.3d 716, 718 (5th Cir.
1999); Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997). A
prisoner's in forma pauperis complaint may be dismissed as
frivolous if it lacks an arguable basis in law or fact. Harper,
174 F.3d at 718. In making the "frivolous" determination, a court
is not bound to accept without question the truth of the
plaintiff's allegations. Denton v. Hernandez, 504 U.S. 25, 32
(1992). However, the § 1915(e) "frivolous" determination cannot
serve as a factfinding process for the resolution of disputed
facts. Id. When the district court dismisses a prisoner's in
forma pauperis complaint for failure to state a claim under
§ 1915(e)(2)(B)(ii), on the other hand, we review its determination
de novo. Black v. Warren, 134 F.3d 732, 733-34 (5th Cir. 1998).
The district court was incorrect in dismissing Robinson's case
under 42 U.S.C. § 1997(e) because § 1997(e) prohibits only the
recovery of damages for mental or emotional harm absent a physical
injury. Harper, 174 F.3d at 719. Here, Robinson seeks both
declaratory and injunctive relief in addition to damages. However,
we can affirm the district court's ruling on any basis supported by
the record. Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998).
Robinson claims that a handbook issued by the Texas Department
of Criminal Justice provides that grievances are to be kept
confidential. He claims that the handbook created a
constitutionally protected "liberty interest" in the
confidentiality of the prison's grievance procedures. In Sandin v.
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Connor, 515 U.S. 472, 483-84 (1995), the United States Supreme
Court held that prison regulations generally do not implicate
constitutionally protected liberty interests unless they involve
freedom from restraint which "imposes atypical and significant
hardship on the inmate in relation to the ordinary incidents of
prison life." After Sandin, we stated in Orellana v. Kyle, 65 F.3d
29, 32 (5th Cir. 1995), that apart from creating a liberty interest
in good time credits or parole release, "it is difficult to see
that any other deprivations, . . . short of those that clearly
impinge on the duration of confinement, will henceforth qualify for
constitutional liberty status." Robinson has not alleged that
violation of the confidentiality provision caused him any atypical
and significant hardship in relation to the ordinary incidents of
prison life within the meaning of Sandin. Accordingly, his
confidentiality claim is frivolous.
Robinson also alleges that he was retaliated against for
filing a grievance against defendant Jackson when Luker, Jackson
and Butler conspired to file false disciplinary charges against
him. The elements of a retaliation claim are the "invocation of 'a
specific constitutional right,' the defendants' intent to retaliate
against the plaintiff for his or her exercise of that right, a
retaliatory adverse act, and causation, i.e., 'but for the
retaliatory motive the complained of incident . . . would not have
occurred.'" Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir.
1997), cert. denied, -- U.S. --, 118 S. Ct. 559, 139 L. Ed. 2d 400
(1997) (quoting Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995))
4
(emphasis added). Even assuming that Robinson invoked a specific
constitutional right by filing a prison grievance, his claim fails
because he has not asserted a retaliatory adverse act against him.
Robinson suffered no punishment on either disciplinary complaint.
Further, he does not claim that the alleged retaliation had a
chilling effect on his filing of grievances; indeed, he filed three
more grievances between January 12 and March 6, 1997 after his
initial grievance against Jackson. Not all threats or deprivations
in the prison setting give rise to a constitutional violation. See
Thaddeus-X v. Blatter, 175 F.3d 378, 398 (6th Cir. 1999); Gibbs v.
King, 779 F.2d 1040, 1046 (5th Cir. 1986) (incident involving minor
sanction not sufficient to show retaliatory harassment). Robinson
simply has not alleged the type of adverse action that rises to the
level of retaliation. Accordingly, his retaliation claim was
properly dismissed as frivolous.
AFFIRMED.
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