Howland v. Readore ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-20901
Conference Calendar
GENE E. HOWLAND,
Plaintiff-Appellant,
versus
READORE; COONS, Lieutenant; K.W. BERRY, Major;
NFN ROBINSON; J.C. STRICKLIN; D.R. FLANERY;
NFN TUNCHES; RANKIN, Sergeant; TOMMY B. THOMAS;
NFN HANKA, Sergeant,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-96-CV-1669
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August 22, 2000
Before KING, Chief Judge, and POLITZ and WIENER, Circuit Judges.
PER CURIAM:*
Gene E. Howland, Texas state prisoner # 518149, proceeding
pro se and in forma pauperis (IFP), appeals the district court’s
dismissal of his 42 U.S.C. § 1983 complaint as frivolous and for
failure to state a claim upon which relief may be granted. See
28 U.S.C. § 1915(e)(2)(B). On appeal, Howland raises the
following arguments: (1) the district court caused him to lose
valuable rights, privileges, and immunities due to his lack of
*
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that this opinion should not be published and is not precedent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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knowledge or experience in the judicial process; (2) the district
court ruled on a motion to dismiss the defendants in their
official capacity, which Howland asserts was not presented to the
district court; (3) the district court exhibited prejudice and
bias against him; (4) the district court’s dismissal violated his
right to seek redress before a jury; (5) the defendants violated
his right to due process under the Fourteenth Amendment during a
prison disciplinary proceeding arising out of Howland’s failure
to wear prison-issued clothing; (6) the defendants filed false
disciplinary reports against Howland; (7) the defendants
conducted retaliatory searches and seizures; (8) the defendants
were negligent in their hiring and training of prison employees
who conducted the searches of Howland’s prison cell; and
(9) Howland was not afforded the opportunity to amend and remedy
the deficiencies in his complaint.
Howland’s argument that the district court caused him to
lose valuable rights, privileges, and immunities fails to
identify any specific error committed by the district court.
Contrary to Howland’s second assertion, the defendants filed a
motion to dismiss the complaint against them in their official
capacity. The district court then properly ruled on the
defendants’ motion. Howland has failed to identify bias or
prejudice on the part of the district court. See Liteky v.
United States, 510 U.S. 540, 555 (1994)(holding that an adverse
ruling alone does not indicate bias). The district court
dismissed Howland’s complaint as frivolous and for failure to
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state a claim; therefore, he did not demonstrate that his
complaint was adequate to proceed to trial. See § 1915(e)(2)(B).
The disciplinary proceedings instituted against Howland
resulted only in 15 days’ loss of commissary and visitation
privileges. As such, Howland has not stated cognizable due
process or false disciplinary claims. See Sandin v. Conner, 515
U.S. 472, 485 (1995); Berry v. Brady, 192 F.3d 504, 508 (5th Cir.
1999); Madison v. Parker, 104 F.3d 765, 768 (5th Cir. 1997).
Although Howland contends that he has witnesses to testify
that the defendants hired other inmates to assault him, he does
not allege that any such assault occurred and has failed to
demonstrate an adverse retaliatory action. See McDonald v.
Steward, 132 F.3d 225, 231 (5th Cir. 1998). Howland has failed
to demonstrate that the searches of his prison cell were done in
retaliation for his filing grievances. See Block v. Rutherford,
468 U.S. 576, 590-91 (1984)(holding that random, irregular
searches of a prisoner’s cell are constitutional); Johnson v.
Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997)(conclusional
allegations are insufficient to establish a claim that defendants
acted with retaliatory intent). Because he has not demonstrated
that the prison cell searches were retaliatory in nature, Howland
has failed to demonstrate that the prison officials were
negligent in hiring, training, or supervising the defendants who
conducted the searches of Howland’s prison cell.
Finally, Howland’s argument that he was not afforded the
opportunity to amend his deficient complaint is not true. After
it reviewed Howland’s original complaint, the district court
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ordered him to file a more definite statement. Howland filed a
more definite statement, but still failed to state a meritorious
claim. See Macias v. Raul A. (Unknown), Badge No. 153, 23 F.3d
94, 98 n.5 (5th Cir. 1994)(noting that a plaintiff proceeding pro
se and IFP is not entitled to repeated opportunities to
articulate the factual basis of his claim).
The district court correctly determined that Howland’s
complaint was frivolous and failed to state a claim upon which
relief may be granted. Accordingly, the district court’s
judgment is AFFIRMED. See Adepegba v. Hammons, 103 F.3d 383, 387
(5th Cir. 1996)(affirmance of the district court’s dismissal as
frivolous counts as a single strike). Howland had accumulated
two strikes prior to filing the notice of appeal in this case.
See Howland v. Thomas, No. H-96-1714 (S.D. Tex. Dec. 9, 1996);
Howland v. Dix, No. G-95-732 (S.D. Tex. Apr. 9, 1998). He now
has three strikes for purposes of § 1915 and is prohibited from
proceeding IFP in any civil action or appeal filed while he is
incarcerated or detained in any facility unless he is in imminent
danger of serious physical injury. See 28 U.S.C. § 1915(g);
Carson v. Johnson, 112 F.3d 818, 819 (5th Cir. 1997).
AFFIRMED; 28 U.S.C. § 1915(g) BAR IMPOSED.