Vacca v. Farrington

United States Court of Appeals
Fifth Circuit
FILED
IN THE UNITED STATES COURT OF APPEALS January 19, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-40416
Summary Calendar
ANGEL MARTINEZ VACCA,
Plaintiff-Appellant,
versus
WAYNE SCOTT; GARY L. JOHNSON; KAY SHEELEY;
DARWIN D. SANDERS; RODNEY COOPER; DAWN GROUNDS;
JAMES HASSELL; ROD R. WILSON; NORRIS JORDAN;
KELLEE LANGLEY; LONA HOPKINS; JIMMIE WISE;
KELLY ROSEBERRY; CALVIN FOX; RONALD FARRINGTON;
DAVID W. PETERS; JONATHON R. RAYBURN; ZELDA GLASS;
TIA RANGE; JOHN INTERNAL AFFAIRS; JOE SKIPPER,
Defendants-Appellees,
_______________________________________________________________
ANGEL M. VACCA,
Plaintiff-Appellant,
versus
RODNEY COOPER; RONALD FARRINGTON; DAVID W. PETERS;
JONATHON R. RAYBURN; ZELDA GLASS,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC Nos. 5:00–CV-221
5:00-CV-245
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No. 04-40416
-2-
Before JONES, BARKSDALE and PRADO, Circuit Judges.
PER CURIAM:*
Angel Martinez Vacca, Texas prisoner #695268, appeals the
denial of his pro se amended 42 U.S.C. § 1983 complaint for
failure to state a claim. In his complaint, he raised claims of
denial of access to a toilet facility, retaliation, failure to
follow prison grievance procedure, and supervisory liability.
Vacca’s claim that he was repeatedly denied access to a
bathroom in violation of the Eighth Amendment fails. Although
Vacca averred that the defendants acted with deliberate
indifference in denying him access to a bathroom because they
knew of and disregarded an excessive risk to his present and
future health, Vacca failed to state the nature of the risk to
his present and future health. His conclusional allegation is
insufficient to give rise to a 42 U.S.C. § 1983 claim. See Hale
v. Harney, 786 F.2d 688, 690 (5th Cir. 1986). At the most, Vacca
alleged that he suffered generalized pain and discomfort, which
is insufficient to state an Eighth Amendment violation. See
Wilson v. Lynaugh, 878 F.2d 846, 849 (5th Cir. 1989).
Nor is Vacca’s claim for emotional and mental suffering
cognizable under 42 U.S.C. § 1983. Vacca’s pain and discomfort
for which he apparently sought no medical treatment is de minimis
*
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this opinion should not be published and is not precedent except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. 04-40416
-3-
and is insufficient to support an Eighth Amendment claim. Siglar
v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997).
Vacca’s retaliation claim also fails. Vacca failed to
allege a chronology of events from which retaliation may be
plausibly inferred. Woods v. Smith, 60 F.3d 1161, 1164 (5th Cir.
1995). Vacca’s claims that he was threatened with serious bodily
injury in an effort to deny him access to the courts and that
prison officials failed to follow prison disciplinary procedure
are not actionable under 42 U.S.C. § 1983. See McFadden v.
Lucas, 713 F.2d 143, 146 (5th Cir. 1983); Edwards v. Johnson, 209
F.3d 772, 779 (5th Cir. 2000).
Vacca’s claim against Sanders fails as he has not alleged
that Sanders was personally involved in a constitutional
deprivation. Nor has he alleged a sufficient causal connection
between Sanders’s alleged wrongful conduct and any constitutional
violation. Thompkins v. Belt, 828 F.2d 298, 303-04 (5th Cir.
1987).
Lastly, Vacca has failed to show that the district court
abused its discretion in consolidating his underlying complaint
with a second 42 U.S.C. § 1983 complaint filed against Warden
Rodney Cooper. Bottazzi v. Petroleum Helicopters, Inc., 664 F.2d
49, 50 (5th Cir. 1981). First, the cases were consolidated
pursuant to Vacca’s own motion. Second, Vacca does not contest
the district court’s finding that the cases arose from the same
factual scenario. The judgment of the district court is
AFFIRMED.