Williams v. Dretke , 306 F. App'x 164 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 12, 2009
No. 07-11071
Summary Calendar Charles R. Fulbruge III
Clerk
GEORGE NEAL WILLIAMS
Plaintiff-Appellant
v.
DOUGLAS DRETKE, Director Texas Department of Criminal Justice; NFN
BRALEE; NFN SABINE; NFN THOMPSON; NFN GREEN; NFN WILLIAMS;
NFN AVANT; NFN SLOAN; NFN BRAZEE
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:06-CV-116
Before JONES, Chief Judge, and STEWART and OWEN, Circuit Judges.
PER CURIAM:*
George Neal Williams, Texas prisoner # 1002786, filed a civil rights
complaint asserting claims against several prison officials. Williams later filed
supplements in which he asserted retaliation claims based on events that
occurred after the filing of the complaint. The magistrate judge (MJ) dismissed
the retaliation claims based on post-complaint events for failure to exhaust
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-11071
administrative remedies. The MJ dismissed Williams’s remaining claims as
frivolous. We review the dismissal of a prisoner’s complaint as frivolous for
abuse of discretion. Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999).
Williams claims that defendant Green violated his right to equal
protection by denying him admission to the chow hall after allowing inmates of
another race to enter moments before. Williams contends that Green’s desire
was to provoke him. Williams’s claim fails because he does not allege a
discriminatory intent on the part of Green. See Taylor v. Johnson, 257 F.3d 470,
473 (5th Cir. 2001). Further, Williams’s allegations do not establish that he and
the other inmates admitted by Green were similarly situated. See Village of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000).
Williams contends that defendants Thompson, Brazee, Sabine, and
Williams filed false disciplinary charges against him. The MJ determined that
Williams’s allegations regarding the filing of false disciplinary charges were
malicious prosecution claims, a characterization that Williams does not dispute.
There is no federal constitutional claim based on the tort of malicious
prosecution. Castellano v. Fragozo, 352 F.3d 939, 953-54 (5th Cir. 2003) (en
banc).
Williams claims that the defendants violated a protected liberty interest
when they charged him with several disciplinary violations that resulted in the
reduction in good-time earning status, the loss of a chance for parole, and the
loss of good time credits. Williams’s reduction in line-class status does not
implicate due process concerns. See Madison v. Parker, 104 F.3d 765, 768 (5th
Cir. 1997). Texas prisoners have “no constitutional expectancy of parole” and,
thus, any effect that the punishment had on Williams’s parole eligibility could
not support a constitutional claim. See Malchi v. Thaler, 211 F.3d 953, 957 (5th
Cir. 2000). Williams does not challenge the MJ’s determination that the
requirements of due process were met in the disciplinary cases that resulted in
the loss of previously earned good time credits. See Wolff v. McDonnell,
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No. 07-11071
418 U.S. 539, 563-66 (1974). He has therefore waived the issue. See Brinkmann
v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
Williams claims that defendant Sloan, who was his counsel substitute,
violated his constitutional rights by refusing to provide assistance in his
disciplinary cases. Williams cannot maintain a § 1983 action against Sloan
based on her actions as his counsel substitute. See Banuelos v. McFarland,
41 F.3d 232, 234 (5th Cir. 1995).
Williams claims that defendants Brazee and Sabine were deliberately
indifferent to his serious medical needs when they refused to issue a pass to
allow him to go to the medical department. He asserts that Brazee forced him
to report to his prison job when he was sick with a virus. Williams, however, has
not shown that he had anything more than a minor illness. He has not shown
that the defendants were deliberately indifferent to a serious medical need. See
Wilson v. Seiter, 501 U.S. 294, 297 (1991); Gobert v. Caldwell, 463 F.3d 339, 345
n.12 (5th Cir. 2006).
Williams claims that he was denied meals and that the defendants
pursued disciplinary charges against him in retaliation for his filing of a
previous civil action. Williams, who has provided no specifics about the previous
action, presents arguments regarding the dismissal of his retaliation claims that
are entirely conclusory and are devoid of any facts that would support an
inference of a retaliatory motive on account of the prior lawsuit. A prisoner who
brings a retaliation claim bears a heavy burden that may not be satisfied with
conclusional allegations or his own personal beliefs. Jones v. Greninger,
188 F.3d 322, 324-25 (5th Cir. 1999).
Williams does not challenge the MJ’s dismissal, for failure to exhaust
administrative remedies, of his retaliation claims based on events that occurred
after the filing of the complaint. Accordingly, this court will not consider the
issue. See Brinkmann, 813 F.2d at 748.
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No. 07-11071
Williams’s appeal is without arguable merit and, thus, frivolous. See
Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Because the appeal is
frivolous, it is dismissed. See 5TH CIR. R. 42.2.
The dismissal of this appeal as frivolous counts as a strike for purposes of
28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir.
1996). Williams previously accumulated at least two strikes. See Williams v.
Leonard, 274 F. App’x 355, 356 (5th Cir. 2008). Because Williams now has
accumulated at least three strikes, he is barred from proceeding 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 § 1915(g).
APPEAL DISMISSED AS FRIVOLOUS; 28 U.S.C. § 1915(g) BAR
IMPOSED.
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