Wood v. Nesmith ( 1995 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-20064
Summary Calendar
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WILLIE WOOD,
Plaintiff-Appellant,
versus
JOE NESMITH,
Defendant-Appellee.
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Appeal from the United States District Court for the
Southern District of Texas
(CA H 92 1799)
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June 26, 1995
Before GARWOOD, HIGGINBOTHAM and DAVIS, Circuit Judges.*
GARWOOD, Circuit Judge:
Plaintiff-appellant Willie Wood (Wood) appeals the district
court's dismissal of his 42 U.S.C. § 1983 suit as frivolous under
28 U.S.C. § 1915(d). We vacate and remand.
Facts and Proceedings Below
*
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should not be published.
On June 18, 1992, Wood, an inmate confined in the
Institutional Division of Ellis II Unit of the Texas Department of
Criminal Justice (TDCJ) in Huntsville, Texas, filed this suit
pursuant to 42 U.S.C. § 1983 against Joe Nesmith, a captain in
TDCJ's Internal Affairs Division. In his original complaint, Wood
alleged that Nesmith, during a search of Wood's cell, destroyed
Wood's watch and destroyed or misplaced Wood's radio booster and a
Smith-Corona typewriter. According to Wood's complaint, Nesmith
destroyed his property in retaliation for Wood's exercise of his
Fifth Amendment privilege in an investigation that Nesmith was
conducting concerning forged commitment papers that could
potentially enable an inmate to be released early. The
investigation centered on Wood because another inmate told
investigators that Wood had helped him modify records in an effort
to secure early release, but Wood refused to discuss the matter
with Nesmith, invoking his Fifth Amendment privilege against self-
incrimination. Wood asserts that he was acquitted of a similar
forgery charge in 1986.
The district court referred Wood's case to a magistrate judge,
who, on August 5, 1993, ordered Wood to submit a more definite
statement of the facts of his case and answer specific questions.
These questions included "What did [Nesmith] say or do to lead you
to believe the property was destroyed in retaliation for your
refusal to cooperate?" Wood responded that Nesmith told him "that
since I didn't want to talk to him that I might get my propert[y]
back and I might not." Wood further stated that when Nesmith
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returned his property to him, his typewriter and radio booster were
not in the box. According to Wood, "I hollowed [sic] at him after
he walked away asking him about my typewriter and he said . . .
you know Pay Back when you see it don't you." Wood also alleged
that his ring was missing and that his watch was returned to him
"in a brown envelope destroyed."1 The magistrate judge granted
Wood leave to proceed in forma pauperis.
On September 6, 1994, Wood filed an amended complaint,
alleging that Nesmith had discovered a volume of the Southwest
Reporter in Wood's cell and filed charges falsely accusing him of
stealing the book that belonged to his cellmate. Wood asserted
that, based on Nesmith's accusation, he was found guilty of
destroying state property at a prison disciplinary hearing and
ordered to reimburse the state fifteen dollars for the book and to
serve fifteen days in solitary confinement. Wood alleged that
Nesmith filed the charges related to the Southwest Reporter "solely
to haress [sic] Plaintiff and to make sure Plaintiff be locked up."
In his amended complaint, Wood also alleged that Nesmith
seized the wills of his parents and a fire insurance policy on his
home. Wood asserted that Nesmith took and failed to return these
items because a Texas jury had acquitted Wood on a charge of
tampering with state records. In addition, Wood asserted that
Nesmith destroyed some of his personal property and failed to
1
Wood did not mention his ring in the statement of the facts
contained in his original complaint. He did, however, list a
ring as part of his property misplaced or destroyed by Nesmith in
the prayer for relief.
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return other items in retaliation for Wood's exercise of his Fifth
Amendment right during Nesmith's investigation of the forgery.
Wood alleged that, when he refused to answer Nesmith's questions
about the forgery investigation, Nesmith told him "he would know
Pay-back when he seen [sic] it."
The district court held a Spears hearing on January 3, 1995.
Wood and several TDCJ officials testified at this hearing, but
Nesmith was not present. At the Spears hearing, Wood reiterated
the allegations of his complaint, asserting that Nesmith had
falsely accused him of the Southwest Reporter incident in
retaliation. Wood also testified that Nesmith had arranged for him
to be placed in administrative segregation in retaliation for his
exercise of his Fifth Amendment right and because he had been
acquitted at trial of the forgery charges. Wood testified that
Nesmith had taken his ring, watch, typewriter, his diary, his
parents' wills, and his insurance policy and that Nesmith never
returned any of these items.2 Wood testified, "But after I took
the Fifth, he told me, said, well, you just might get your property
back, you know. So, this is the reason I'm saying retaliation on
his part because I wouldn't talk to him."
At the conclusion of the Spears hearing, the district court
dismissed Wood's complaint with prejudice as frivolous under 28
2
In his more definite statement, Wood stated that Nesmith
returned his watch "in a brown envelope destroyed." However, at
the Spears hearing, Wood testified that "[Nesmith] never returned
my watch." In his more definite statement and again in his
brief on appeal, Wood alleges that Nesmith took a personal diary
(or diaries). Wood, however, does not make this allegation about
the diary in either his original or amended complaints.
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U.S.C. § 1915(d). In so holding, the district court reasoned that
the conduct alleged by Wood failed to raise an inference of
retaliation and that Wood's conclusory claim was insufficient.
When Wood inquired about his property damage claims, the district
court informed him that he would have to pursue those claims in
state court. Wood filed a timely notice of appeal and was granted
leave to proceed in forma pauperis.
Discussion
Dismissal of an in forma pauperis petition under 28 U.S.C. §
1915(d) is appropriate where the district court is satisfied that
the action is frivolous. An action is frivolous "where it lacks an
arguable basis either in law or in fact." Neitzke v. Williams, 109
S. Ct. 1827, 1831-32 (1989); see also Booker v. Koonce, 2 F.3d 114,
115-16 (5th Cir. 1993). We review a district court's section
1915(d) dismissal for abuse of discretion. Mackey v. Dickson, 47
F.3d 744, 745 (5th Cir. 1995).
In the district court below, Wood essentially voiced two
complaints, that Nesmith damaged and destroyed his personal
property in retaliation for his exercise of his Fifth Amendment
rights and that Nesmith filed the allegedly false charges
concerning the law book to harass him and ensure that he was placed
in administrative segregation. In his brief on appeal, Wood does
not raise the argument that Nesmith retaliated against him by
charging him in the law book incident. Accordingly, Wood has
abandoned this argument, and we will not consider it. Yohey v.
Collins, 985 F.2d 222, 225 (5th Cir. 1993). Wood argues for the
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first time on appeal that Nesmith retaliated against him because of
his exercise of his right of access to the courts and that Nesmith
failed to return religious materials to him in violation of the
First Amendment. We will not entertain these arguments because
Wood failed to raise them in the district court below. Varnado v.
Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991).
The only remaining issue is whether Wood has alleged a
constitutional claim based on his allegations that Nesmith
destroyed his personal property in retaliation for the exercise of
his Fifth Amendment rights. Relying on Whittington v. Lynaugh, 842
F.2d 818 (5th Cir.), cert. denied, 109 S. Ct. 108 (1988), the
district court held that Wood's allegations did not raise an
inference of retaliation because his claims were conclusory and
insufficient. In so holding, the district court rejected Wood's
reliance on Nesmith's alleged statements concerning "pay back,"
stating that threats were not actionable under section 1983.
In Whittington, an inmate filed suit under 42 U.S.C. § 1983
against prison officials, alleging that the defendants denied him
certain perks in retaliation for his having filed prior lawsuits
against the Texas prison system. The district court dismissed the
suit as frivolous under section 1915(d), and the inmate appealed.
After recognizing that "[s]erious status discrimination in
retaliation for a prisoner exercising his right to go to court
would violate a prisoner's civil rights," id. at 819 (citation
omitted), the Whittington court affirmed the district court's
dismissal on the ground that the inmate had "advanced nothing but
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the claim itself without the slightest support of any factual
allegations." Id. The Whittington court reasoned that federal
courts cannot entertain every claim by inmates claiming that prison
officials discriminated against them for one reason or another.
Id. ("If we were to hold that appellant by his allegations in this
case had established a case which was entitled to the full panoply
of discovery, appointment of counsel, jury trial and the like, we
would be establishing a proposition that would play havoc with
every penal system in the country.").
Under Whittington, a prisoner asserting a retaliation claim
must at least raise an inference of retaliation and may not rely
solely on unsupported and insufficient allegations. The district
court concluded that Wood's allegations were insufficient to raise
an inference of retaliation.3 We disagree. Based on the
allegations of Wood's complaint, his more definite statement, and
his Spears hearing testimony, we hold that Wood raised an inference
of retaliation for exercise of Fifth Amendment rights against self-
incrimination sufficient to survive a section 1915(d) dismissal.
Such a claim of retaliation is not legally frivolous under Neitzke.
3
In holding that Wood failed to raise an inference of
retaliation, the district court reasoned that verbal threats were
insufficient to state a claim under section 1983. We agree with
the district court's reasoning concerning threats. See Bender v.
Brumley, 1 F.3d 271, 274 n.4 (5th Cir. 1993) ("Mere allegations
of verbal abuse do not present actionable claims under § 1983.)".
Thus, if Wood claimed only that Nesmith threatened to take action
against him in retaliation for invoking his Fifth Amendment right
against self-incrimination, the district court's reasoning would
surely apply. Wood's complaint, however, alleges more than
verbal threats of retaliation; rather, he asserts that Nesmith
followed through with his threats and destroyed his property.
Accordingly, the district court erroneously relied on Bender.
7
Wood alleged that he invoked his Fifth Amendment right against
self-incrimination when he refused to answer Nesmith's questions
concerning the forgery investigation, that Nesmith unlawfully
destroyed his property without color or claim of justification, and
that Nesmith told Wood that he destroyed his property as "pay back"
for Wood's refusal to answer his questions. Although we express no
view on the ultimate legal and factual merits of Wood's retaliation
claim, we hold that on the present record the district court abused
its discretion in dismissing this portion of Wood's complaint as
frivolous under section 1915(d).
Conclusion
For the foregoing reasons, the judgment of the district court
is VACATED and the cause is REMANDED.
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