Parker v. Currie , 359 F. App'x 488 ( 2010 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 4, 2010
No. 08-41023
Summary Calendar Charles R. Fulbruge III
Clerk
CLYDE JOE PARKER, II,
Plaintiff-Appellant,
versus
UNIDENTIFIED CURRIE, Warden; UNIDENTIFIED SMITH, Major;
UNIDENTIFIED SHACKLEFORD, Classifications;
CLASSIFICATION MEMBERS, from the Unit;
UNIDENTIFIED READ, Lieutenant; UNIDENTIFIED HOUGH;
UNIDENTIFIED BROOKS; UNIDENTIFIED GOUCH;
UNIDENTIFIED LITTLE; UNIDENTIFIED NORTHWORTH, Sergeant;
UNIDENTIFIED SHAW, Nurse; UNIDENTIFIED PICKET BOSS;
UNIDENTIFIED HOFFER, Correctional Officer;
UNIDENTIFIED SIMON, Nurse; FRED MOORE, Physician Assistant;
UNIDENTIFIED WARD, Correctional Officer,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Texas
No. 9:08-CV-16
No. 08-41023
Before DAVIS, SMITH, and DENNIS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Clyde Parker, a Texas prisoner, appeals the dismissal of his pro se, in for-
ma pauperis 42 U.S.C. § 1983 civil rights suit as frivolous and for failure to state
a claim. We dismiss the appeal as frivolous.
I.
Parker claims that various Texas prison officials violated the Eighth
Amendment by subjecting him to cruel and unusual punishment. Specifically,
he alleges that prison officials were deliberately indifferent to his safety by fail-
ing to move him to an individual cell after numerous altercations with other pri-
soners.
After conducting a Spears hearing, the magistrate judge issued a detailed
report recommending that the suit be dismissed as frivolous under 28 U.S.C.
§ 1915A(b). The district court, following de novo review of the pleadings, adopted
that recommendation and dismissed.
II.
Under the Prisoner Litigation Reform Act (“PLRA”), a district court shall
dismiss a complaint that is frivolous or fails to state a claim upon which relief
may be granted. 28 U.S.C. § 1915A(b)(1). We review dismissals under § 1915A
de novo. See, e.g., Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005); Ruiz v.
United States, 160 F.3d 273, 275 (5th Cir. 1998). To avoid dismissal, a plaintiff
must plead facts sufficient to “state a claim to relief that is plausible on its face.”
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-41023
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)).
Parker must demonstrate that “he was incarcerated under conditions pos-
ing a substantial risk of serious harm,” Newton v. Black, 133 F.3d 301, 308 (5th
Cir. 1998), and “that prison officials were deliberately indifferent to his need for
protection,” id. He must prove “that the official actually knew of a substantial
risk of serious harm and failed to act.” See, e.g., Adeleke v. Heaton, No. 08-
11211, 2009 WL 3682539, at *3 (5th Cir. Nov. 5, 2009) (per curiam) (unpub-
lished) (emphasis added).
Parker’s allegations fail to meet the “extremely high standard” for delib-
erate indifference. Domino v. Tex. Dep’t of Crim. Justice, 239 F.3d 752, 756 (5th
Cir. 2001). During his current stint in prison, Parker has lodged repeated com-
plaints asserting that his life is in jeopardy. Each time, prison officials dutifully
investigated Parker’s claim and determined it to be unsubstantiated. Numerous
times, those officials nevertheless moved him from one prison to another, or from
one cell block to another and back again, to try to keep him away from what he
perceived to be life-threatening danger. But, for Parker, any assignment to a
general population unit was objectionable. As he admitted at his Spears hear-
ing, he made it plain to certain prison officials that he would keep filing com-
plaints until he was housed by himself.
The magistrate judge went out of her way to detail the various incidents
on which Parker relies to state his claim. For each occasion that Parker points
to, there is nothing tending to show that the responsible officer “was aware of
facts from which the inference could be drawn that a substantial risk of serious
harm exists” and that he did in fact draw the inference. Neals v. Norwood, 59
F.3d 530, 533 (5th Cir. 1995) (quoting Farmer v. Brennan, 511 U.S. 825, 837
(1994)). Even assuming that the harm he faced was indeed substantial, Parker
does not allege that prison officials acted in ways that evince “obduracy and wan-
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No. 08-41023
tonness,” Bradley v. Puckett, 157 F.3d 1022, 1025 (5th Cir. 1998) (quotation omit-
ted), or that rise above simple negligence, see Farmer, 511 U.S. at 847; Lawson
v. Dallas County, 286 F.3d 257, 262-63 (5th Cir. 2002).
Stripped of their “conclusory allegations or legal conclusions masquerading
as factual conclusion,” Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th
Cir. 2002), Parker’s claims boil down to a disagreement with prison officials over
his housing status. He wants a single cell, but prison officials have determined
that he should remain in general population. An “inmate does not have a pro-
tectable liberty or property interest in his custodial classification,” Neals, 59 F.3d
at 533, and his mere “disagreement with a classification is insufficient to estab-
lish a constitutional violation,” id.Although Parker focuses his briefing almost entirely on deliberate indif-
ference, he also raises the rumblings of a retaliation claim. In particular, he
speculates that his attacks by other inmates were in fact orchestrated by prison
officials. That fanciful characterization, without additional support, calls for dis-
missal.
III.
We direct Parker’s attention to the PLRA’s three-strikes provision, 28
U.S.C. § 1915(g). A dismissal of a lawsuit as frivolous under § 1915A constitutes
a strike. See, e.g., Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).
If a prisoner accumulates three strikes, he is not allowed to a bring another civil
action in forma pauperis while incarcerated unless under imminent danger of
serious physical injury. Parker is so warned.
The appeal is DISMISSED as frivolous. See 5 TH C IR. R. 42.2. All out-
standing motions are DENIED.
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