Jeffery v. Collins ( 1995 )

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-20513
Summary Calendar
BILLY D. JEFFERY,
Plaintiff-Appellant,
VERSUS
JAMES A. COLLINS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION; JOSE F. LUNA; HASSEL R. TERRY;
GARY L. JOHNSON; JACK N. EASTLAND; KELLY S. ENLOE;
JOSEPH E. BLANTON; BETTINA A. COLEMAN; WESLEY W. ATKINSON;
DAVID A PRICE; TERRENCE L. MCCLOUD; CHARLES L. KRAATZ;
TODD C. CASCEATO; MARJORIE A. HOLIDAY; MICHAEL A. NASH; V. HOWARD,
Defendants-Appellees.
Appeal from the United States District Court
For the Southern District of Texas
(H-95-CV-452)
November 30, 1995
Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:1
Appellant Jeffery, a Texas Department of Criminal Justice
inmate, sued numerous department employees under 42 U.S.C. § 1983.
After allowing amendment of the complaint and obtaining additional
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Rule, the Court has determined that this opinion should not be
published.
information by interrogatories, the district court concluded that
Jeffery had no reasonable chance of success; that his complaint was
frivolous, and she dismissed the suit under 28 U.S.C. § 1915(d).
Jeffery appealed. We affirm in part, and vacate and remand in
part.
Appellant asserts in this Court the following issues:
(1) Liability of a prison guard for failure to prevent an
attack by another inmate.
(2) Liability of supervisors and classification committee
members.
(3) Whether a failure to protect claim raises a constitutional
issue.
(4) Whether refusal to provide Appellant with a shower raises
a constitutional issue.
(5) Whether placement of a hostile inmate in Appellant’s cell
raises a constitutional issue.
Appellant’s claim against Corrections Officer Jack Eastland
stems from a physical attack on Appellant by fellow inmate Johnny
Singleton. Appellant alleges that Singleton told him that
Appellant had to provide sexual favors to an inmate or fight and
that, when Appellant refused, Singleton spoke with Officer Eastland
and then returned to Appellant stating that he had Eastland’s
permission to “open the floor” unless Appellant complied. Jeffery
continued to refuse. Shortly thereafter, another inmate struck
Appellant several times and Officer Eastland did not intervene to
protect Appellant until it was apparent that Appellant would not
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defend himself. Jeffery also alleged that Eastland refused to take
any action against the inmate who struck Appellant.
To succeed on this failure to protect claim Jeffery must show
that he was incarcerated under conditions posing a substantial risk
of serious harm and that prison officials were deliberately
indifferent to his need for protection. Neals v. Norwood, 59 F.3d
530, 533 (5th Cir. 1995). To show that the corrections officer
acted with deliberate indifference Jeffrey must show that Officer
Eastland was both aware of facts from which the inference could be
drawn that a substantial risk of serious harm existed, and that he
did in fact draw that inference. Id. Whether a prison official
had the requisite knowledge of a substantial risk of harm is a
question of fact. Id. at 533. If Appellant could prove his
allegations he could arguably state a claim for failure to protect
against Officer Eastland. The claim was, therefore, not frivolous
and its dismissal as such was premature.
Appellant’s remaining claims are frivolous and were properly
dismissed.
There is no vicarious liability under § 1983 so those claims
made against persons in their supervisory capacity only, and who
are not alleged to have had any personal involvement in the affair,
are frivolous.
There can be no constitutional claim stated against members of
the classification committee because inmates have neither property
nor liberty interests in their custodial classification. Neals, 59
F.3d at 533.
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The failure to protect claim arising from the incident which
occurred while Appellant was being returned from the showers does
not state a constitutional violation because it did not involve a
substantial risk of serious harm. See Neals, 59 F.3d at 533.
Likewise, the allegation that Appellant was refused a shower
does not raise a constitutional issue. See Smith v. McCleod, 946
F.2d 417, 418 (5th Cir. 1991); Holloway v. Gunnell, 685 F.2d 150,
156 and n.6 (5th Cir. 1982).
Nor do the allegations relating to the incident returning from
the shower and the deprivation of a shower state a claim of
unconstitutional retaliation because there are no factual
allegations to support the inference that the motivation of the
corrections officers was retaliation. Woods v. Smith, 60 F.3d
1161, 1166 (5th Cir. 1995); Woods v. Edwards, 51 F.3d 577, 580-81
(5th Cir. 1995).
Finally, Appellant contends that a hostile inmate was placed
in his cell in retaliation for the filing of this proceeding. But
that claim fails for lack of allegation of facts from which it can
be inferred that the placement of the inmate in Appellant’s cell
was motivated by retaliation. The request for injunctive relief
against the officers arising out of this incident is rendered moot
by the fact that Appellant has been transferred.
AFFIRMED IN PART and VACATED and REMANDED IN PART.
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