Plunkett v. USA ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 98-40613
Summary Calendar
_____________________
NOEL EDWARD PLUNKETT,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA;
MICHAEL A. PURDY; J. DIAZ;
L. TEMPLE; J. GERALDI,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-97-CV-677
_________________________________________________________________
May 27, 1999
Before JOLLY, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Federal prisoner Noel Edward Plunkett appeals the magistrate
judge’s1 dismissal as frivolous, pursuant to 28 U.S.C. § 1915(e),
of his civil rights lawsuit alleging that a prison guard, Officer
Diaz, labeled him as a “snitch” to other prisoners in retaliation
for his earlier complaints about Officer Diaz and for another
lawsuit that he has filed. Plunkett also argues that the other
*
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this opinion should not be published and is not precedent except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.
1
Plunkett consented to proceed before a magistrate judge.
defendants-appellees, by rejecting his prison grievance complaining
about Officer Diaz’s acts, condoned the retaliation.
Plunkett does not brief any argument in connection with the
dismissal of the United States as a defendant to the lawsuit. His
argument is therefore waived. See Yohey v. Collins, 985 F.2d 222,
224-25 (5th Cir. 1993)(arguments not briefed on appeal are waived).
Plunkett has not demonstrated that the magistrate judge abused
her discretion in dismissing his lawsuit. Plunkett has failed to
allege sufficient facts to show that the defendants-appellees
violated his constitutional rights. See Newton v. Black, 133 F.3d
301, 308 (5th Cir. 1998); Thompkins v. Belt, 828 F.2d 298, 303 (5th
Cir. 1997). He has also failed to demonstrate a retaliatory
motive, either through direct evidence or by alleging a chronology
of events from which retaliation may plausibly be inferred. See
Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995). His
retaliation claims are therefore without arguable basis in law and
fact and were properly dismissed.
Plunkett argues for the first time in his reply brief that he
has been the victim of racial discrimination and retaliation
because of his existing and threatened litigation, in violation of
his rights of equal protection, free speech, and access to the
courts. However, this court will not consider issues raised for
the first time in a reply brief. See United States v. Prince, 868
F.2d 1379, 1386.
2
A F F I R M E D.2
2
The appellant’s motion for appointment of counsel and to file
brief in present form is DENIED.
3