Satterwhite v. Small ( 1998 )


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  •                        UNITED STATES COURT OF APPEALS
    FIFTH CIRCUIT
    _________________
    No. 97-20286
    (Summary Calendar)
    _________________
    KENNETH LERON SATTERWHITE,
    Plaintiff-Appellant,
    versus
    VERNICE SMALL; DAVID B BRYANT; R L                    OTT,
    Warden; KENT RAMSEY; JOHN E STICE;                    F E
    FIGUEROA,
    Defendants-Appellees.
    Appeal from the United States District Court
    For the Southern District of Texas
    (H-95-CV-4694)
    January 14, 1998
    Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
    PER CURIAM:*
    Kenneth L. Satterwhite, Texas prisoner #393238, appeals from
    the   dismissal   of    his   
    42 U.S.C. § 1983
       action   as   frivolous.
    Satterwhite contends that the district court erred by dismissing
    *
    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    that this opinion should not be published and is not precedent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.
    his action as frivolous following the imposition of a partial
    filing fee; that prison officials retaliated against him for using
    the prison grievance system by filing false disciplinary charges
    against    him;    that   he   did     not       receive    due    process   at   his
    disciplinary hearing; that prison officials conspired to deprive
    him of due process at his disciplinary hearing; that a prison
    warden retaliated against him for filing the current lawsuit by
    transferring him to a different prison unit; and that at his
    Spears1 hearing the district court improperly relied on the prison
    record and    the    testimony    of    a     prison   official      to   contradict
    Satterwhite’s allegations.
    Satterwhite filed his complaint and paid a $30 partial filing
    fee before the effective date of the PLRA.                 He failed, however, to
    serve Ramsey and Stice.          While the Prison Litigation Reform Act
    (PLRA)    allows    district   courts       to    dismiss    a    pauper/prisoner’s
    complaint as frivolous at any time despite the payment of a partial
    filing fee, 
    28 U.S.C. § 1915
    (e)(2), prior to the PLRA such a
    dismissal was not authorized.          See Grissom v. Scott, 
    934 F.2d 656
    ,
    657 (5th Cir. 1991).      We need not determine, however, whether this
    provision of the PLRA applies retroactively to Satterwhite because
    we may affirm the dismissal on other grounds.                    See Tyler v. Mmes.
    Pasqua & Toloso, 
    748 F.2d 283
    , 287 (5th Cir. 1984), overruled on
    other grounds, Victorian v. Miller, 
    813 F.2d 718
    , 724 (5th Cir.
    1
    Spears v. McCotter, 
    766 F.2d 179
     (5th Cir. 1985)
    -2-
    1987); Irving v. Thigpen, 
    732 F.2d 1215
    , 1216 n.2 (5th Cir. 1984).
    Because Ramsey and Stice remain unserved, we vacate the dismissal
    with prejudice and remand to the district court for entry of an
    order of dismissal without prejudice.         See Marts v. Hines, 
    117 F.3d 1504
    , 1506 (5th Cir. 1997) (en banc); Kersh v. Derozier, 
    851 F.2d 1509
    , 1511-1512 (5th Cir. 1988).
    Satterwhite contends he was retaliated against for pursuing
    prison grievances. He discusses the law he believes is relevant to
    his argument but discusses no facts relevant to such argument
    beyond stating that the motivation of the relevant defendants was
    based   on   his    disciplinary    hearing   and     the   appeal    resulting
    therefrom.    Satterwhite has failed to adequately brief this issue.
    See Brinkmann v. Dallas County Deputy Sheriff Abner, 
    813 F.2d 744
    ,
    748 (5th Cir. 1987).
    Satterwhite’s punishment of 15 days solitary confinement and
    a reduction in line class did not impose the type of atypical and
    significant hardship on Satterwhite in relation to the ordinary
    incidents    of    prison   life   that   would    give   rise   to   a   liberty
    interest.    See Sandin v. Connor, 
    515 U.S. 472
    , 484, 
    115 S. Ct. 2293
    , 2301, 
    132 L.Ed.2d 418
     (1995).               Satterwhite has failed to
    state a due process claim regarding his disciplinary hearing.
    Satterwhite contends that the defendants conspired to violate
    his rights during and after his disciplinary hearing, but he offers
    no detailed factual arguments in his appellate brief.                     He has
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    failed to adequately brief the issue for appeal.             See Brinkmann,
    
    813 F.2d at 748
    .
    Satterwhite’s allegations against the prison warden do not
    give rise to a plausible inference of retaliation. Satterwhite did
    not name the warden as a defendant in his initial complaint, and
    none of the warden’s actions was at issue.                  Satterwhite was
    transferred to another prison unit before he called the warden’s
    actions   into    question   in   his     supplemental    complaint.          The
    chronology    alleged   by   Satterwhite     does   not   give   rise    to   an
    inference    of   retaliation,    and   Satterwhite   has    made   no   other
    allegations giving rise to such an inference.               Satterwhite has
    failed to state a claim of retaliation against the warden.                    See
    Woods v. Smith, 
    60 F.3d 1161
    , 1166 (5th Cir. 1995), cert. denied
    sub nom, Palermo v. Woods, 
    116 S. Ct. 800
    , 
    133 L.Ed.2d 747
     (1996).
    Because Satterwhite has failed to brief two of his appellate issues
    and because he failed to state a claim regarding his other issues,
    the dismissal of his complaint is affirmed except as to Ramsey and
    Stice.
    AFFIRMED in part and VACATED and REMANDED in part.
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