Crockett v. Wackenhut Correctional Corp. , 79 F. App'x 732 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS November 6, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-30329
Summary Calendar
DARRYL A. CROCKETT,
Plaintiff-Appellant,
versus
WACKENHUT CORRECTIONAL CORP.; O. KENT ANDREWS; MARK ESTES; JOSEPH
EVANS, JR.; WALTER GARNETT; DANIEL GRANGER; WILLIAM MARTIN; DOE
LINSEY; DOE MANUAL; RICHARD WACKENHUT; CARLENE VIDRINE; GORDON
WEBB; DOE SIMMONS; JOHN ONELLION; DOE MORGAN; DOE WHITTINGTON,
Defendant-Appellees.
Appeal from the United States District Court
for the Western District of Louisiana
(02-CV-1446)
Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Darryl A. Crockett, Louisiana inmate # 97474, appeals the
dismissal of his 42 U.S.C. § 1983 civil-rights action.
For his retaliation claim, Crockett contends that the district
court erred in dismissing his complaint because he alleged facts in
support of a direct-retaliation theory and a chronology of events
from which it could reasonably be inferred that retaliation
*
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this opinion should not be published and is not precedent except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.
occurred because he had written a complaint letter to an
administrator at a different correctional facility. Crockett’s
retaliation claim fails unless he identifies a constitutional
right, the exercise of which resulted in retaliation. See McDonald
v. Steward, 132 F.3d 225, 231 (5th Cir. 1998).
As Crockett concedes, he did not have a constitutional right
to complain. See Gibbs v. King, 779 F.2d 1040, 1045-46 (5th Cir.
1986). Crockett maintains, however, that prison officials censored
his outgoing mail. “Prison officials may not censor inmate
correspondence simply to eliminate unflattering or unwelcome
opinions or factually inaccurate statements.” Procunier v.
Martinez, 416 U.S. 396, 413 (1974), overruled in part, Thornburgh
v. Abbott, 490 U.S. 401 (1989). Taking as true (as we are required
to do) Crockett’s allegation that prison officials censored his
mail, Crockett has alleged a constitutional right and a chronology
of events from which it can reasonably be inferred that he was
subject to retaliation through disciplinary proceedings, as well as
being directly disciplined for writing the letter. See Bradley v.
Puckett, 157 F.3d 1022, 1025 (5th Cir. 1998); Woods v. Smith, 60
F.3d 1161, 1166 (5th Cir. 1995).
Crockett also contends that, before dismissing his First
Amendment claim, the district court should have given him the
opportunity to amend. To the extent that his claims were dismissed
as frivolous, the district court was not required to provide
Crockett an opportunity to amend. See Graves v. Hampton, 1 F.3d
315, 318 n.12 (5th Cir. 1993), abrogated on other grounds, Arvie v.
Broussard, 42 F.3d 249, 251 (5th Cir. 1994). Moreover, Crockett
did amend his complaint once; and he had the opportunity to file
objections to the magistrate judge’s report and recommendation and
did so.
Finally, Crockett contends that the district court erred in
dismissing his Eighth Amendment claims for failure to exhaust his
administrative remedies because it will take over three years to do
so. Crockett urges application of the exception found in McCarthy
v. Madigan, 503 U.S. 140 (1992), as cited in Edwards v. Johnson,
209 F.3d 772, 776-77 (5th Cir. 2000), to excuse him from his Prison
Litigation Reform Act (PLRA) duty to exhaust. Edwards involved an
alien awaiting deportation, a situation to which the PLRA does not
apply; and we have declined to apply McCarthy’s exception to the
exhaustion requirement for prisoners’ claims under the PLRA. See
Clifford v. Gibbs, 298 F.3d 328, 332 (5th Cir. 2002).
That part of the judgment dismissing with prejudice Crockett’s
retaliation claim is VACATED; the remainder of the judgment is
AFFIRMED; and this matter is REMANDED for further proceedings.
VACATED IN PART; AFFIRMED IN PART; and REMANDED