Anthony Prescott v. Greg Abbott ( 2020 )

Case: 19-50538 Document: 00515385981 Page: 1 Date Filed: 04/17/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 19-50538
Fifth Circuit
FILED
Summary Calendar April 17, 2020
Lyle W. Cayce
ANTHONY PRESCOTT, Clerk
Plaintiff-Appellant
v.
GREG ABBOTT, GOVERNOR OF THE STATE OF TEXAS; DAN PATRICK,
Lieutenant Governor; TEXAS DEPARTMENT OF CRIMINAL JUSTICE;
DALE WAINWRIGHT, Texas Department of Criminal Justice Chairman;
TEXAS COMMISSION ON JAIL STANDARDS,
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:18-CV-957
Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Anthony Prescott, Texas prisoner # 2174108, appeals the dismissal of his
42 U.S.C. § 1983 suit against Governor Greg Abbott, Lieutenant Governor Dan
Patrick, the Texas Department of Criminal Justice, Chairman Dale
Wainwright, and the Texas Commission on Jail Standards as frivolous. In the
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 19-50538 Document: 00515385981 Page: 2 Date Filed: 04/17/2020
No. 19-50538
suit, he argued, inter alia, that prison officials and employees poisoned his
food, conducted illegal surveillance and harassed him, and impeded his access
to courts. Prescott originally filed his case in the Eastern District of Texas, but
that district court severed the matter into five separate cases and transferred
them to the appropriate districts.
We review the dismissal of an in forma pauperis complaint as frivolous
pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) for abuse of discretion. Black v.
Warren, 134 F.3d 732, 733-34 (5th Cir. 1998). A complaint is frivolous if it
lacks an arguable basis either in law or in fact. Siglar v. Hightower, 112 F.3d
191, 193 (5th Cir. 1997).
Prescott argues that the district court erred in concluding that the
defendants enjoyed immunity under the Eleventh Amendment because the
American with Disabilities Act (ADA) and Section 504 of the Rehabilitation
Act (RA) abrogate that immunity. However, Prescott has not shown that he is
entitled to relief under the ADA and RA. See Hale v. King, 642 F.3d 492, 499
(5th Cir. 2011).
In addition, Prescott also alleges that Abbott, Patrick, and Wainwright
do not enjoy immunity because they: (1) conducted unlawful surveillance in
order to obtain “unfair business advantage and access his proprietary business
concepts” in violation of his constitutional rights; (2) implemented official and
unofficial policies in the state prison systems, such as understaffing, that
subjected Prescott to deliberate indifference and injury; (3) retaliated against
Prescott for exercising his First Amendment right to access to courts;
(4) subjected Prescott to harassment and threats; (5) deprived Prescott of
untainted food; and (6) ignored Prescott’s serious medical needs and requests
for assistance.
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Case: 19-50538 Document: 00515385981 Page: 3 Date Filed: 04/17/2020
No. 19-50538
These allegations of harassment, threats, deliberate indifference,
impediments to accessing courts, and retaliation by Abbott, Patrick, and
Wainwright are conclusory and speculative. Therefore, he fails to show that
the district court abused its discretion in dismissing the claims as frivolous.
See Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002); Spiller
v. City of Texas City, Police Dept., 130 F.3d 162, 167 (5th Cir. 1997); Woods v.
Smith, 60 F.3d 1161, 1166 (5th Cir. 1995). To the extent Prescott argues that
Abbott, Patrick, and Wainwright are liable for actions of their subordinates,
supervisory officials may not be found vicariously liable under § 1983 for such
actions. See Monell v. Department of Social Services, 436 U.S. 658, 691-94
(1978); Hinojosa v. Livingston, 807 F.3d 657, 668 (5th Cir. 2015).
Finally, Prescott argues that the district court erred in not allowing him
an opportunity to amend his complaint or provide a definite statement of his
factual allegations. Prescott failed to file an amended notice of appeal after
the district court denied his postjudgment motion to amend. We lack
jurisdiction to consider this claim, and as to this claim the appeal is dismissed.
See Fiess v. State Farm Lloyds, 392 F.3d 802, 806-07 (5th Cir. 2004).
The dismissal of this action by the district court as frivolous counts as a
strike under 28 U.S.C. § 1915(g). See § 1915(g). Prescott is warned that once
he accumulates three strikes, he may not proceed IFP 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 § 1915(g).
AFFIRMED IN PART; DISMISSED IN PART; SANCTION WARNING
ISSUED.
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