Taylor v. Cockrell , 92 F. App'x 77 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
February 12, 2004
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 03-10933
Summary Calendar
LARRY RAY TAYLOR,
Plaintiff-Appellant,
versus
JANIE COCKRELL; JOSEPH DOMINQUEZ, Warden;
GREGORY OLIVER, Warden; JASPER MAXEY; RONNY TUCKER;
DENNIS MARGRAFF; JOHN SOLIS; KELLI WARD; GEORGINA
CLOWER; ROBERT COFFEY; MICHAEL SAVERS; THOMAS
MEDART; GARY MESSER; PATRICE MAXEY,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:02-CV-248
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Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Larry Ray Taylor, a Texas prisoner (# 888263), appeals from
the district court’s sua sponte dismissal of his 42 U.S.C. § 1983
civil rights complaint as frivolous and for failure to state a
claim, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii). In his
original complaint, Taylor asserted that he had argued with a
fellow inmate, that he had told some of the defendants that the
inmate had threatened him, that the defendants did nothing, and
*
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that this opinion should not be published and is not precedent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. 03-10933
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that the inmate subsequently attacked him. In response to an
order from the magistrate judge, Taylor filed an amended
complaint in which he added claims that defendant grievance
officers had failed to investigate his grievances regarding this
matter, and he appeared to allege that some of the defendants had
retaliated against him. He did not, however, replead the claims
he had raised in his original complaint or attempt to
reincorporate those claims by reference. In its dismissal order,
the district court refused to consider the claims that Taylor had
made in his original complaint.
In a rambling and largely incoherent pro se appellate brief,
Taylor argues at length that the district court abused its
discretion by ordering him to amend his complaint without clearly
informing him that he would forfeit the claims made in his
original complaint if he did not replead those claims or
incorporate them by reference.
Even if the district court abused its discretion by failing
to consider those claims, the court did not abuse its discretion
in dismissing the complaint as frivolous. As in district court,
Taylor asserts his substantive claims in only a vague and
conclusory manner. Although pro se complaints and arguments must
be liberally construed, see Moore v. McDonald, 30 F.3d 616, 620
(5th Cir. 1994), a plaintiff in a 42 U.S.C. § 1983 action must
plead specific facts, not “conclusory allegations.” See Schultea
v. Wood, 47 F.3d 1427, 1433 (5th Cir. 1995) (en banc); Biliski v.
Harborth, 55 F.3d 160, 162 (5th Cir. 1995); Arnaud v. Odom, 870
F.2d 304, 307 (5th Cir. 1989). Taylor’s allegations have been
No. 03-10933
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and remain insufficient to establish that defendant officials
were aware of facts from which an inference could be drawn that
he faced a “substantial risk of serious harm” from his fellow
inmate. See Newton v. Black, 133 F.3d 301, 308 (5th Cir. 1998);
Farmer v. Brennan, 511 U.S. 825, 837 (1994). He has not pleaded
facts showing a “chronology of events” sufficient to establish
retaliatory motive. See Woods v. Smith, 60 F.3d 1161, 1166 (5th
Cir. 1995). Finally, Taylor’s claims that the defendants
violated his constitutional rights by failing to investigate his
grievances fall short of establishing a federal constitutional
claim. Sandin v. Conner, 515 U.S. 472, 485-86 (1995); see
Hernandez v. Estelle, 788 F.2d 1154, 1158 (5th Cir. 1986).
Taylor’s appeal is without arguable merit and is thus
frivolous. See Howard v. King, 707 F.2d 215, 220 (5th Cir.
1983). Accordingly, the appeal is DISMISSED. 5TH CIR. R. 42.2.
The dismissal of his complaint as frivolous and the dismissal of
this appeal as frivolous each count as a “strike” for purposes of
28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383,
387-88 (5th Cir. 1996). We caution Taylor that once he
accumulates three strikes, 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. See 28 U.S.C. § 1915(g).
Taylor’s motion for injunctive relief, for an order that he
be transferred to another correctional facility, and to
supplement the record on appeal is DENIED.
APPEAL DISMISSED; SANCTION WARNING ISSUED; MOTION DENIED.