Butler v. Cole

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 27, 2004
Charles R. Fulbruge III
Clerk
No. 03-11037
Summary Calendar
MICHAEL SCOTT BUTLER,
Plaintiff-Appellant,
versus
JOHN COLE; BRIAN MUIRHEAD; WILLIAM BURTON; THOMAS BURTON; MARY
WILLEY; CHERYL BERGER; TIM CARROLL; KELLI WARD; ROBERT TREON;
RICHARD WATHEN; JAMES MOONEYHAM; RAYMOND RAMSEY; KENNETH BRIGHT;
HERMAN WESTON; TOMMY NORWOOD; STEVE PATTY; BRUCE SPERRY; INTERNAL
AFFAIRS DIVISION OF THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE
INSTITUTIONAL DIVISION; JOHN GILBERT; ERIC MORGAN; SCOTT APPLE;
PAMELA PENCE; NFN WALLACE, Correctional Officer; SUSAN
SCHUMACHER; MARK ADKINS,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 7:01-CV-168-R
--------------------
Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Michael Scott Butler, Texas prisoner #574009, moves for
leave to proceed in forma pauperis (IFP) on appeal following the
certification that his appeal was taken in bad faith pursuant to
28 U.S.C. § 1915(a)(3). Butler moves for appointment of counsel
on appeal; his motion for appointment of counsel is DENIED. 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that this opinion should not be published and is not precedent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.
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district court dismissed all but one of Butler’s claims against
all defendants except Sgt. Eric Morgan as frivolous pursuant to
28 U.S.C. § 1915(e)(2)(B)(i), then later granted summary judgment
on the remaining claim against Sgt. Morgan and dismissed that
claim as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
Butler contends that the district court erred by denying his
requests for appointment of counsel; that various defendants
retaliated against him for filing grievances and writing to the
warden; that his disciplinary hearings violated the Due Process
Clause; that the district court erred by granting Sgt. Morgan’s
summary judgment motion before allowing him discovery; that the
district court erred by granting Sgt. Morgan leave to file an
out-of-time summary judgment motion; that the district court
erred by failing to appoint an expert medical witness on his
behalf; that the district court erred by granting summary
judgment on his excessive-force claim against Sgt. Morgan; and
that various defendants failed to stop Sgt. Morgan from using
excessive force. Butler’s contentions are unavailing.
First, because Butler’s action did not present exceptional
circumstances, the denial of his requests for appointment of
counsel was not an abuse of discretion. Jackson v. Dallas Police
Dep’t, 811 F.2d 260, 261 (5th Cir. 1986). Second, Butler’s
pleadings and his prison grievances indicated that the defendants
accused of writing retaliatory disciplinary reports were not
motivated by retaliatory animus. See Tighe v. Wall, 100 F.3d 41,
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42 (5th Cir. 1996). Butler has failed to brief his remaining
retaliation contentions. Brinkmann v. Dallas County Deputy
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Third, no
protected liberty interests were implicated in Butler’s
disciplinary hearings. See Sandin v. Conner, 515 U.S. 472, 484
(1995); Malchi v. Thaler, 211 F.3d 953, 958 (5th Cir. 2000).
Fourth, the failure to grant Butler’s discovery motions and his
expert-witness motion was not an abuse of discretion. See
Pedraza v. Jones, 71 F.3d 194, 196-97 n.5 (5th Cir. 1995);
Richardson v. Henry, 902 F.2d 414, 417 (5th Cir. 1990).
Fifth, the summary judgment evidence indicated that the
injuries arising from Sgt. Morgan’s use of force against Butler
were de minimis and, therefore, did not violate the Eighth
Amendment. See Hudson v. McMillian, 503 U.S. 1, 9-10 (1992).
Butler had been seen several times for a shoulder injury before
the July 13, 2001, use of force. The prison medical staff
believed that the shoulder separation about which Butler
complained after the use of force was secondary to Butler’s prior
injury. The medical records indicated that Butler complained
about blurry vision only once, in August 2001, nearly two months
after the altercation with Sgt. Morgan. Finally, Dr. Potter
reviewed the medical records and opined that any injuries arising
from the use of force were de minimis.
The summary judgment evidence indicates no genuine issues of
material fact. See FED. R. CIV. P. 56(c). Moreover, the evidence
No. 03-11037
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indicates that Butler’s excessive-force claim has no arguable
basis in fact or law. See 28 U.S.C. § 1915(e)(2)(B)(i). The
district court did not err by granting summary judgment and
dismissing the claim as frivolous.
Butler’s contentions against other defendants regarding the
use of force by Sgt. Morgan are derivative of the contentions
against Sgt. Morgan. Because Butler has failed to show that Sgt.
Morgan violated his constitutional rights, he has failed to show
that other defendants failed to stop Sgt. Morgan from violating
his rights.
Butler’s appeal is without arguable merit and is frivolous.
Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Butler’s
IFP motion is denied and the appeal is dismissed. 5TH CIR.
R. 42.2. The district court’s dismissal of Butler’s claims as
frivolous and this court’s dismissal of the appeal count as two
strikes against Butler for purposes of 28 U.S.C. § 1915(g).
Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).
Butler is warned that the dismissal of his complaint counts as a
strike for purposes of 28 U.S.C. § 1915(g), that the dismissal of
his appeal counts as a second strike, and that when he
accumulates three strikes he will not be allowed to proceed IFP
No. 03-11037
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in any civil action or appeal unless he is “under imminent danger
of serious physical injury.” 28 U.S.C. § 1915(g).
IFP DENIED; MOTION FOR APPOINTMENT OF COUNSEL ON APPEAL
DENIED; APPEAL DISMISSED; SANCTIONS WARNING ISSUED.