Correa v. Dretke , 122 F. App'x 112 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT January 31, 2005
Charles R. Fulbruge III
Clerk
No. 04-20345
Summary Calendar
RICHARD CORREA, SR.,
Plaintiff-Appellant,
versus
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION;
CYNTHIA A. POPP; RICHARD C. THALER; ROBERT H. QUADA,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Texas
(4:03-CV-3934)
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Richard Correa, Sr., Texas prisoner #1084369, appeals, pro se,
the dismissal of his civil rights complaint for failure to state a
claim upon which relief may be granted, pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii). This action arises out of the temporary seizure
from Correa of the portable programmer for his implanted pulse
generator. Correa contends the district court erred by dismissing
(1) his retaliation claims under the Americans with Disabilities
*
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this opinion should not be published and is not precedent except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.
Act, 42 U.S.C. §§ 12101-12213 (ADA), and the Rehabilitation Act, 29
U.S.C. §§ 791-794e (RA); (2) his due process and equal protection
claims; and (3) his deliberate indifference claims against Thaler
and Popp.
Correa did not state a viable retaliation claim because he did
not allege defendants retaliated against him for engaging in a
protected activity. See Seaman v. CSPH, Inc., 179 F.3d 297, 301
(5th Cir. 1999). Because Correa did not allege he was treated
differently from similarly situated prisoners or that defendants
engaged in purposeful discrimination to harm an identifiable group,
his complaint failed to state an equal protection claim upon which
relief may be granted. See Wheeler v. Miller, 168 F.3d 241, 252
(5th Cir. 1999); Johnson v. Rodriguez, 110 F.3d 299, 306-07 (5th
Cir.), cert denied, 522 U.S. 995 (1997).
Correa did not allege his freedom from restraint was curtailed
by defendants; therefore, he did not allege they infringed upon a
protected liberty interest. See Sandin v. Conner, 515 U.S. 472,
484 (1995). And, because Texas law provides an adequate post-
deprivation remedy for the unlawful taking of property, Correa’s
complaint did not state a viable due process claim for the
infringement of a protected property interest. See Cathey v.
Guenther, 47 F.3d 162, 164 (5th Cir. 1995); Sheppard v. La. Bd. of
Parole, 873 F.2d 761, 763 (5th Cir. 1989) (citing Hudson v. Palmer,
468 U.S. 517, 533-35 (1984)). Accordingly, Correa’s complaint did
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not state a due process claim upon which relief may be granted.
See Blackburn v. City of Marshall, 42 F.3d 925, 935 (5th Cir.
1995).
Because Correa did not allege Thaler was personally involved
in a constitutional deprivation, his complaint did not state a
viable deliberate indifference claim against Thaler. See Thompkins
v. Belt, 828 F.2d 298, 303-04 (5th Cir. 1987). His contention that
Thaler was sufficiently personally involved in a constitutional
deprivation pursuant to 42 U.S.C. §§ 1985- 1986 is without merit
because he did not allege that Thaler’s actions were motivated by
racial or class-based invidiously discriminatory animus. See Bradt
v. Smith, 634 F.2d 796, 801-02 (5th Cir. Unit A Jan. 1981).
Although Correa alleged facts showing Popp was aware of facts
from which she could draw the inference that a substantial risk of
harm existed, he did not allege facts showing Popp actually drew
that inference. This is, therefore, insufficient to state a claim
for deliberate indifference. See Farmer v. Brennan, 511 U.S. 825,
837 (1994). Furthermore, as the interruption of Correa’s treatment
was brief, any pain Correa suffered as a result of the interruption
was insufficient to establish a constitutional violation. See
Mayweather v. Foti, 958 F.2d 91, 91 (5th Cir. 1992).
The district court’s dismissal of Correa’s complaint 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). Correa is cautioned
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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, SANCTION WARNING ISSUED
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