Rodriguez v. Collins ( 2004 )

United States Court of Appeals
Fifth Circuit
FILED
IN THE UNITED STATES COURT OF APPEALS June 23, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-41621
Conference Calendar
GERMAN RODRIGUEZ,
Plaintiff-Appellant,
versus
RAMONIA COLLINS, Correctional Officer III; SHIRLENE HASTY,
Sergeant; CYNTHIA CHOAT, Counselor Substitute I; CLIFTON
MATTOX, Disciplinary Captain,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:02-CV-92
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Before BARKSDALE, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
German Rodriguez, Texas prisoner # 748574, appeals the
district court’s dismissal of his 42 U.S.C. § 1983 complaint as
frivolous. He argues that his allegations established an Eighth
Amendment violation and that, even absent physical injury, he is
entitled to nominal and punitive damages, as well as declaratory
and injunctive relief. He further asserts that the demotion in
his time-earning status implicated due process protections.
*
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that this opinion should not be published and is not precedent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. 03-41621
-2-
Rodriguez’s allegations established that Officer Collins and
Sergeant Hasty would not allow him to use the restroom for
several minutes. As the district court determined, Rodriguez’s
allegations do not demonstrate that the defendants deprived him
“of the minimal civilized measures of life’s necessities.”
Palmer v. Johnson, 193 F.3d 346, 352 (5th Cir. 1999) (internal
quotation marks and citation omitted). Although Rodriguez also
asserts that the defendants’ actions interfered with his medical
treatment, he fails to explain how not allowing him to go to the
restroom interfered with his taking blood pressure medicine.
Therefore, the district court did not abuse its discretion in
dismissing Rodriguez’s Eighth Amendment claim as frivolous. See
Taylor v. Johnson, 257 F.3d 470, 472 (5th Cir. 2001).
Likewise, the district court did not abuse its discretion in
dismissing Rodriguez’s due process claim, as this court has
specifically held that a demotion in time-earning status does not
trigger due process protections. Malchi v. Thaler, 211 F.3d 953,
959 (5th Cir. 2000). Rodriguez’s argument that he is entitled to
nominal and punitive damages, as well as declaratory and
injunctive relief, need not be addressed, as that argument
relates to the district court’s alternative basis for dismissing
Rodriguez’s Eighth Amendment claim.
The district court’s dismissal of the complaint as frivolous
counts as a “strike” for purposes of 28 U.S.C. § 1915(g). See
Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th Cir. 1996).
No. 03-41621
-3-
Rodriguez is WARNED that if he accumulates three strikes pursuant
to 28 U.S.C. § 1915(g), 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. Id.AFFIRMED; SANCTION WARNING ISSUED.