Boudreaux v. Foti ( 1995 )


Menu:
  •                     UNITED STATES COURT OF APPEALS
    for the Fifth Circuit
    _____________________________________
    No. 95-30217
    Summary Calendar
    _____________________________________
    DAVID BOUDREAUX,
    Plaintiff-Appellant,
    VERSUS
    CHARLES FOTI, Sheriff, Etc., ET AL.,
    Defendants-Appellees.
    ______________________________________________________
    Appeal from the United States District Court
    for the Eastern District of Louisiana
    (94-CV-2499)
    ______________________________________________________
    (September 26, 1995)
    Before DAVIS, BARKSDALE and DeMOSS, Circuit Judges.
    PER CURIAM:1
    Boudreaux challenges the district court's dismissal of his §
    1983 suit against a number of defendants as frivolous under §
    1915(d) and against other defendants for failure to state a claim.
    We affirm.
    David     Boudreaux,   Sr.,    a   convicted    prisoner   presently
    incarcerated at the Louisiana State Penitentiary at Angola, filed
    this pro se, in forma pauperis (IFP) civil rights complaint, 42
    1
    Local Rule 47.5 provides: "The publication of opinions that
    have no precedential value and merely decide particular cases on
    the basis of well-settled principles of law imposes needless
    expense on the public and burdens on the legal profession."
    Pursuant to that Rule, the Court has determined that this opinion
    should not be published.
    U.S.C. § 1983, against Orleans Parish Sheriff Charles C. Foti, Jr.,
    Jefferson Parish Sheriff Harry Lee, 24th Judicial District Judge
    Clarence McManus, Jefferson Parish Juvenile Judge Ann Keller,
    Indigent Defender Michael Rochs, and Indigent Defender Russell
    Stegeman.      Following several transfers, Boudreaux amended his
    complaint to name as additional defendants C.M. Lensing, the warden
    of the Hunt Correctional Facility, and John P. Whitley, the warden
    of the Louisiana State Penitentiary at Angola.               The plaintiff
    alleges violations of both federal and state created rights and
    seeks monetary damages of $l,000,000, a declaratory judgment that
    the defendants violated his civil rights, and injunctive relief
    "against all persons" in the event of retaliation against him for
    filing the complaints.     Most of Boudreaux's allegations relate to
    his first transfer, from the Jefferson Parish Correctional Center
    to the Orleans Parish Prison System.        His general claim is that the
    actions   of   the   various   defendants    denied   him   access   to   his
    attorneys and to the courts.
    This court will uphold the dismissal of IFP claims that are
    frivolous unless the district court abused its discretion.           Denton
    v. Hernandez, 
    504 U.S. 25
    , 33 (1992); Ancar v. Sara Plasma, Inc.,
    
    964 F.2d 465
    , 468 (5th Cir. 1992).
    Boudreaux states that Judges McManus and Keller violated his
    rights by appointing counsel Stegeman and Rochs, whom he claims he
    did not have access to after his transfer from the Jefferson to the
    Orleans Parish facility.       Boudreaux has not identified any facts
    supporting his allegations against Judge McManus and Judge Keller.
    2
    Nor has he suggested that they acted outside their jurisdictions,
    thereby losing the protection of judicial immunity.                         Malina v.
    Gonzales, 
    994 F.2d 1121
    , 1124 (5th Cir. 1993).                   The district court
    correctly dismissed this claim as frivolous.
    Boudreaux's       suit     against        his     court    appointed     counsel
    presumably    is    based     upon   his       claim   that     he   had   difficulty
    contacting them while in the Orleans Parish Prison System.                        The
    district court correctly dismissed this § 1983 action against
    attorneys Rochs and Stegeman because neither is a state actor for
    purposes of § 1983.         Polk County v. Dodson, 
    454 U.S. 312
    , 324-25
    (1981); Mills v. Criminal Dist. Court No. 3, 
    837 F.2d 677
    , 679 (5th
    Cir. 1988).       The claim, therefore, is legally frivolous.
    Jefferson Parish Sheriff Harry Lee and Orleans Parish Sheriff
    Charles C. Foti, Jr. are the last two defendants named by Boudreaux
    in connection with his transfer from Jefferson to Orleans Parish.
    His claims against them are also baseless.                    Section 1983 does not
    create substantive rights but provides a civil remedy for the
    violation    of    protected    life,      liberty,      or    property    interests.
    Blackburn v. City of Marshall, 
    42 F.3d 925
    , 935 (5th Cir. 1995);
    San Jacinto Savings & Loan v. Kacal, 
    928 F.2d 697
    , 700 (5th Cir.
    1991).   Boudreaux has alleged no such a violation.                        An inmate
    generally has no constitutional right to be imprisoned in any
    particular institution, even if life in one institution is less
    desirable.    Maddox v. Thomas, 
    671 F.2d 949
    , 950 (5th Cir. 1982).
    Moreover, in a recent decision the Supreme Court recognized that a
    prisoner's claim that state prison regulations or statutes have
    3
    been violated will not support a § 1983 suit unless the violations
    produce conditions that are "atypical and [a] significant hardship
    . . .in relation to the ordinary incidents of prison life."   Sandin
    v. Conner, 
    115 S. Ct. 2293
    , 2300 (1995).       In other words, the
    condition must be severe enough to implicate the Due Process Clause
    "of its own force."      
    Id.
       Intrastate prison transfers do not
    qualify.   See 
    id.
     at 2297 (citing Meachum v. Fano, 
    427 U.S. 215
    ,
    225 (1976)).     Finally, Boudreaux alleges some specific facts
    regarding limitation of telephone and mail privileges in support of
    his argument that the sheriffs denied him access to the court and
    to his attorneys.   To state a cause of action, however, a plaintiff
    must connect such allegations to prejudice in a specific legal
    proceeding.    See Walker v. Navarro County Jail, 
    4 F.3d 410
    , 413
    (5th Cir. 1993); Richardson v. McDonnell, 
    841 F.2d 120
    , 122 (5th
    Cir. 1988).    Boudreaux has not done so.      The district court,
    therefore, correctly dismissed the suits against Sheriff Foti and
    Lee as frivolous.
    In short, the record and the law support the dismissal under
    
    28 U.S.C. § 1915
    (d) of Boudreaux's actions against Judges McManus
    and Keller, attorneys Rochs and Russell, and Sheriffs Lee and Foti.
    As there is no abuse of discretion, the district court's decision
    is affirmed.
    Boudreaux's last claims, those against Wardens Lensing and
    Whitley, arise from his transfer to their prisons. As the district
    court dismissed these actions for failure to state a claim, Fed. R.
    Civ. P. 12(b)(6), this Court reviews the decisions de novo and will
    4
    not affirm if the allegations support relief on any theory.                  Cinel
    v. Connick, 
    15 F.3d 1338
    , 1341 (5th Cir.), cert. denied, 
    115 S. Ct. 189
     (1994).     For reasons stated above, the plaintiff has no right
    to be imprisoned in any particular institution.                    Nor will his
    allegations that the defendants violated state prison regulations
    or   laws   support     a   §   1983   claim   under    these     circumstances.
    Likewise, his more specific claims regarding limited telephone
    access cannot succeed because the prisoner has not linked them to
    prejudice in a particular case. Finally, Boudreaux does not allege
    that either defendant personally participated in the complained of
    activity, implemented an affirmatively wrongful policy, or breached
    an affirmative duty imposed on him by state law.                    A plaintiff
    cannot maintain an action against an official in his individual
    capacity      without   alleging       a   causal    connection    between    the
    official's actions and the violation.               Woods v. Edwards, 
    51 F.3d 577
    , 583 (5th Cir. 1995); see Lozano v. Smith, 
    718 F.2d 756
    , 768
    (5th   Cir.    1983).       The   district     court,   therefore,     correctly
    dismissed this action against Wardens Lensing and Whitley for
    failure to state a claim.
    We have considered Boudreaux's remaining arguments that the
    district court erred in refusing to allow him to make an additional
    amendment to his petition, in failing to order service of process
    on the original defendants, and in declining to appoint counsel to
    assist him in this suit.          We are satisfied that the district court
    did not abuse its discretion.
    AFFIRMED.
    5
    6