Aguilar v. Johnson ( 1998 )

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 97-41479
(Summary Calendar)
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TIMOTHY A AGUILAR,
Plaintiff - Appellant,
versus
GARY L JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, INSTITUTIONAL DIVISION;
TEXAS DEPARTMENT OF CRIMINAL JUSTICE -
INSTITUTIONAL DIVISION, Company Departments;
KEITH J PRICE, Warden, Coffield Unit; KENNETH
THOMPSON, Coffield Unit; BERNIE L BUSH,
Coffield Unit; BRENTON W CHADWICK, Coffield
Unit; DONALD CHASTAIN, Coffield Unit; RONALD
HARSHE, Coffield Unit; WILLIAM MEIR, Gang
Intelligence; UNIDENTIFIED KELLY, Officer,
Coffield Unit; OMALIE SIMMONS, Inmate Records;
UNIDENTIFIED WATSON, Officer, Coffield Unit;
TEXAS BOARD OF PARDONS & PAROLE,
Defendants - Appellees.
Appeal from the United States District Court
For the Eastern District of Texas
(6:97-CV-188)
July 24, 1998
Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Timothy A. Aguilar, Texas prisoner # 647166, appeals the 28
U.S.C. § 1915(e)(2) dismissal of his pro se, in forma pauperis 42
U.S.C. § 1983 civil rights action as frivolous.
Aguilar first contends that the magistrate judge erred in
determining that he had already raised, in a previous civil rights
action, his claim that defendant Chastain entered his cell and
confiscated legal materials on April 19, 1995, thereby violating
his constitutional right of access to the courts. The magistrate
judge dismissed this claim on the basis that it was barred as
repetitive of claims raised in a state court lawsuit that had been
affirmed in the defendant’s favor. Contrary to the magistrate
judge’s conclusion, however, Aguilar’s testimony at a hearing held
pursuant to Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985),
reflects that the claim Aguilar previously raised against Chastain
involved a September 1995 incident))not this April 19, 1995
incident))and, therefore, should not have been barred as
repetitive. Moreover, because Aguilar alleged in his complaint and
at the Spears hearing that he was prejudiced in a state
postconviction action by Chastain’s removal of several affidavits,
the claim against Chastain is not based on an “indisputably
*
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that this opinion should not be published and is not precedent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.
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meritless legal theory.” McCormick v. Stalder, 105 F.3d 1059, 1061
(5th Cir. 1997); see also McDonald v. Steward, 132 F.3d 225, 230-31
(5th Cir. 1998). We therefore hold that the magistrate judge
abused her discretion in dismissing Aguilar’s claim that Chastain
violated his right of access to the courts in April 1995.
Aguilar next argues that magistrate judge erred in dismissing
as frivolous his claim that on October 4, 1995, the driver of a
prison van allegedly caused him injuries by suddenly and
intentionally braking and his claim that defendants Kelly and
Thompson were deliberately indifferent to his serious medical needs
resulting from the accident. The magistrate judge concluded first
that Aguilar had voluntarily waived both of these claims at his
Spears hearing and then, alternatively, that Aguilar’s pleadings
regarding the deliberate indifference claim showed only “an
isolated incident of non-remarkable proportions” and, therefore,
failed to establish a constitutional violation. Although we find
that Aguilar did, in fact, waive his claim regarding the van
accident during his Spears hearing, we find that Aguilar did not
waive his deliberate indifference claim. Nonetheless, because
Aguilar failed to connect any named defendant to the denial of
medical attention for any serious medical need, see Wesson v.
Oglesby, 910 F.2d 278, 283-84 (5th Cir. 1990), we hold that the
magistrate judge did not abuse her discretion in dismissing the
claim.
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Finally, Aguilar contends that the magistrate judge erred in
dismissing his claims that Chastain engaged in a pattern of
retaliation for the lawsuits he filed against Chastain and that the
Texas Board of Pardon and Paroles denied him parole in retaliation
for the lawsuits he has filed against prison officials. Aguilar’s
allegations were insufficient, however, to show that retaliatory
motive was the basis of these defendants’ actions. See Woods v.
Smith, 60 F.3d 1161, 1166 (5th Cir. 1995) (requiring that plaintiff
produce direct evidence of retaliatory motivation or allege a
chronology of events from which retaliation may plausibly be
inferred and not rest on conclusory allegations of retaliation).
Thus, the magistrate judge did not abuse her discretion in
concluding that these claims were frivolous.
Aguilar’s remaining claims were either waived at his Spears
hearing or have been abandoned by his failure to brief them on
appeal. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.
1993); FED. R. APP. P. 28(a)(6).
For the foregoing reasons, we VACATE and REMAND for further
proceedings the magistrate judge’s decision with regard to
Aguilar’s April 1995 access to the courts claim and AFFIRM with
regard to all other claims.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
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