Wade v. Thomas ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-20132
Summary Calendar
ALEX MELVIN WADE, JR.,
Plaintiff-Appellant,
versus
ADRIAN THOMAS, Lieutenant; JAMIE UBANIA; JUDITH DOLPP,
Corrections Officer III; PATRICK MCDERMOTT, Lieutenant;
BILNOSKI, CUC; TEXAS DEPARTMENT OF CRIMINAL JUSTICE; EDWARDO
CARMONA; THOMAS MERCHANT; ARRON HICKSON; GAYE L. HURST,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CV-2087
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September 19, 2002
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Alex Melvin Wade, Jr., Texas prisoner #790470, appeals from
the district court’s dismissal of his civil-rights lawsuit, filed
under 42 U.S.C. § 1983, as frivolous and for failure to state a
claim upon which relief may be granted, pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(i), (ii). This court reviews a dismissal as
frivolous for abuse of discretion. See Taylor v. Johnson, 257
*
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that this opinion should not be published and is not precedent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. 02-20132
-2-
F.3d 470, 472 (5th Cir. 2001). A dismissal under 28 U.S.C.
§ 1915(e)(2)(B)(ii) for failure to state a claim upon which
relief can be granted is reviewed under the same de novo standard
as a dismissal under FED. R. CIV. P. 12(b)(6). See Black v.
Warren, 134 F.3d 732, 733-34 (5th Cir. 1998). Accordingly, we
review Wade’s claims under the de novo standard.
Wade argues that he was denied due process in his prison
disciplinary hearing, which resulted in his assignment to a lower
time-earning class. Because this punishment does not implicate a
constitutional interest, he was not entitled to the higher
standard of due process under Wolff v. McDonnell, 418 U.S. 539(1974). See Sandin v. Connor, 515 U.S. 472, 486 (1995); Malchi
v. Thaler, 211 F.3d 953, 958-59 (5th Cir. 2000)(28 U.S.C. § 2254case). As there was no underlying due process violation, the
supervisory defendants cannot be liable on that basis. See
Becerra v. Asher, 105 F.3d 1042, 1047-48 (5th Cir. 1997).
Wade alleges that he was denied medical treatment and that
Officer Judith Dolpp’s failure to protect him from another inmate
was caused by improper training or supervision. These claims
fail because Wade has failed to show that the defendants acted
with deliberate indifference. See Farmer v. Brennan, 511 U.S.
825, 837 (1994). Wade’s claims of retaliation fail because he
has not made a sufficient showing of retaliatory motive. See
Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995). Similarly,
Wade’s claim under the Americans with Disabilities Act (“ADA”)
No. 02-20132
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fails because he has not shown that he was disabled for purposes
of the ADA. See Lightbourn v. County of El Paso, Texas, 118 F.3d
421, 428 (5th Cir. 1997).
Wade’s claim that he was denied access to the courts fails
because he has not alleged an actual injury. See Lewis v. Casey,
518 U.S. 343, 351 (1996). Furthermore, his interpretation of
Bounds v. Smith, 430 U.S. 817 (1977), is patently frivolous.
Accordingly, the district court’s judgment is affirmed.
The district court’s dismissal of this lawsuit as frivolous
and for failure to state a claim counts as a strike for purposes
of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383,
388 (5th Cir. 1996). Wade now has two strikes because a separate
civil-rights lawsuit filed previously by Wade was dismissed as
frivolous by the district court. See Wade v. Rowe, No. H-99-1860
(S.D. Tex. Mar. 13, 2000). We caution Wade that if he
accumulates three strikes, he may not proceed in forma pauperis
in any civil action or appeal filed while he is incarcerated or
detained in any facility unless he is under imminent danger of
serious physical injury. See 28 U.S.C. § 1915(g).
AFFIRMED; THREE-STRIKES WARNING ISSUED.