Walker v. Price ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-40170
Summary Calendar
JOE WALKER,
Plaintiff-Appellant,
versus
KEITH J. PRICE, Warden, Coffield Unit;
UNIDENTIFIED DEPOT, Captain, Coffield Unit;
LILLIAN JOHNSON, Correctional Officer,
Coffield Unit; CAROLYN WALLS, Correctional
Officer, Coffield Unit; BENNIE L. COLEMAN,
Sergeant, Coffield Unit,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:98-CV-506
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December 23, 1999
Before JOLLY, JONES and BENAVIDES, Circuit Judges.
PER CURIAM:*
Joe Walker, Texas prisoner #435844, filed a 42 U.S.C. § 1983complaint against Warden Keith J. Price, Captain Depot,
Correctional Officer Lillian Johnson, Correctional Officer
Carolyn Walls, and Sergeant Bennie L. Coleman. He argues that
the district court erred in dismissing his complaint as frivolous
and for failure to state a claim.
*
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that this opinion should not be published and is not precedent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. 99-40170
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This court reviews a dismissal under § 1915(e)(2)(B)(ii) de
novo, applying the same standard used to review a dismissal under
Fed. R. Civ. P. 12(b)(6). Black v. Warren, 134 F.3d 732, 734
(5th Cir. 1998). The dismissal may be upheld only if it appears
that no relief could be granted under any set of facts that could
be proven consistent with the allegations. McGrew v. Texas Bd.
of Pardons & Paroles, 47 F.3d 158, 160 (5th Cir. 1995).
A reviewing court will disturb a district court’s dismissal
of a pauper’s complaint as frivolous only on finding an abuse of
discretion. A district court may dismiss a complaint as
frivolous “‘where it lacks an arguable basis either in law or in
fact.’” Denton v. Hernandez, 504 U.S. 25, 31-33 (1992)(quoting
Neitzke v. Williams, 490 U.S. 319, 325 (1989)); see also Siglar
v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997)(relying on
§ 1915(e)(2)(B)(i)).
“[A] prisoner may have a protected liberty interest in
prison grievance procedures[.]” Gartrell v. Gaylor, 981 F.2d
254, 259 (5th Cir. 1993). “To assure that prisoners do not
inappropriately insulate themselves from disciplinary actions by
drawing the shield of retaliation around them, trial courts must
carefully scrutinize these claims.” Woods v. Smith, 60 F.3d
1161, 1166 (5th Cir. 1995). To state a claim of retaliation, an
inmate must allege the violation of a specific constitutional
right and be prepared to establish that, but for the retaliatory
motive, the complained of incident would not have occurred. Id.“This places a significant burden on the inmate.” Id. The
inmate must produce direct evidence of motivation or “allege a
No. 99-40170
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chronology of events from which retaliation may plausibly be
inferred.” Id. (citation omitted); see also Whittington v.
Lynaugh, 842 F.2d 818, 821 (5th Cir. 1988)(inmate alleging
retaliation must allege facts, not merely conclusions, in support
of his claims). Verbal threats and name-calling by prison guards
do not amount to a constitutional violation. See Bender v.
Brumley, 1 F.3d 271, 274 n.4 (5th Cir. 1993)(pretrial detainee
case)(allegations of verbal abuse and threats by prison officials
do not state a claim under § 1983); Lynch v. Cannatella, 810 F.3d
1363, 1376 (5th Cir. 1987)(same).
Walker’s allegations in his complaint relative to Walls and
Johnson’s verbal harassment do not state a constitutional claim
cognizable under § 1983. Bender, 1 F.3d at 274 n.4. Nor has
Walker shown that the district court erred in dismissing his
retaliatory-transfer claim against Price. See Olim v.
Wakinekona, 461 U.S. 238, 244-45 (1983); see also Hewitt v.
Helms, 459 U.S. 460, 468 (1983) (holding “the transfer of an
inmate to less amenable and more restrictive quarters for
nonpunitive reasons is well within the terms of confinement
ordinarily contemplated by a prison sentence”); Meachum v. Fano,
427 U.S. 215, 224-25 (1976). The judgment of the district court
dismissing these claims is AFFIRMED.
With regard to Walker’s allegation that Walls filed
retaliatory disciplinary cases, a review of the complaint reveals
that Walker stated a nonfrivolous retaliation claim. The
judgment dismissing the claim is VACATED, and the case is
REMANDED for further proceedings.
No. 99-40170
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We also find error in the district court’s dismissal of
Walker’s retaliatory-assault claim against Coleman for failure to
exhaust state remedies. Because Walker is seeking monetary
relief only, it is possible that he was not required to pursue
administrative remedies prior to filing suit. See Whitley v.
Hunt, 158 F.3d 882, 887 (5th Cir. 1998)(clarifying that under
1997e, as amended by the Prison Litigation Reform Act, a federal
prisoner need not exhaust administrative remedies that are not
capable of providing redress); see Marsh v. Jones, 53 F.3d 707,
710 (5th Cir. 1995).
The district court’s dismissal of Walker’s retaliatory-
assault claim against Coleman for nonexhaustion is VACATED, and
the claim is REMANDED for the district court to address whether
monetary relief is available through the Texas Department of
Criminal Justice grievance procedure.
We further find error in the district court’s dismissal of
Walker’s retaliatory-job-reassignment claim. A prisoner has no
constitutional right to a specific work assignment. See Jackson
v. Cain, 864 F.2d 1235, 1248 n.3 (5th Cir. 1989). However, a job
transfer cannot be made in retaliation against the exercise of
constitutional rights. Id. Walker has met the threshold
requirement of alleging a retaliatory-job-reassignment claim.
The district court also erred in dismissing Walker’s claim
against Depot. This court has recognized that a prisoner may
have a protected liberty interest in the prison grievance
procedure. See Gartrell, 981 F.2d at 259. Walker alleged that
Depot destroyed his grievances in retaliation for his use of the
No. 99-40170
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prison grievance procedure. Walker’s claim has an arguable basis
in law.
We make no suggestion as to the ultimate outcome of these
claims. We decide only that the dismissal of these claims was
error. See Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir.
1997).
AFFIRMED IN PART; VACATED AND REMANDED IN PART.