Wheeler v. Penland

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 05-11207 F I L E D
Summary Calendar September 5, 2007
Charles R. Fulbruge III
Clerk
ISAAC D WHEELER
Plaintiff-Appellant
v.
PhD T PENLAND, Staff Psychologist; C COOK; MAJOR FNU OLIVER;
KELLI WARD; JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, INSTITUTIONAL DIVISION; K SIMMONS,
Grievance Investigator; K WENGLAR, ACP II Psychologist; K ELLIS,
Sergeant
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:03-CV-63
Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Isaac D. Wheeler, Texas prisoner # 731348, appeals the district court’s
dismissal of his 42 U.S.C. § 1983 civil rights action against various Texas
*
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should not be published and is not precedent except under the limited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. 05-11207
Department of Criminal Justice officers and medical personnel as frivolous
under 28 U.S.C. § 1915A.
Wheeler argues on appeal that the defendants were deliberately
indifferent to his need for psychiatric care concerning his uncontrollable
thoughts of escape. However, Wheeler has not shown that “the officials refused
to treat him, ignored his complaints, intentionally treated him incorrectly, or
engaged in any similar conduct that would clearly evince a wanton disregard for
any serious medical needs.” Domino v. Texas Dep’t of Criminal Justice, 239 F.3d
752, 756 (5th Cir. 2001).
Wheeler does not, as he did in the district court, make any specific claims
concerning any officials acting in their supervisory capacity or any deliberate
indifference claims concerning his placement in the hoe squad. Because he has
not briefed these claims, they are waived. See Brinkmann v. Dallas County
Deputy Sheriff Abner, 813 F.2d 744, 748 (5thCir. 1987).
Wheeler also argues that his First Amendment rights were violated when
he was prevented from using a telephone to call his family for one year.
However, because Wheeler has not alleged any physical injury, nor has he
requested declaratory or injunctive relief concerning this claim, it is not
cognizable under § 1983. See Geiger v. Jowers, 404 F.3d 371, 374-75 (5th Cir.
2005).
Wheeler contends that his due process rights were violated at a
disciplinary hearing because (1) his mental health concerns, including his
concerns under the Americans with Disabilities Act, were not taken into account;
(2) he was not given notice that an I-60 such as the one he submitted would
result in disciplinary action; and (3) there was insufficient evidence to support
his conviction. Wheeler argues that the district court erred in determining that
his claims were barred by Heck v. Humphrey, 512 U.S. 477, 486-87 (1994),
because he was sentenced under TEX. GOV’T CODE § 508.149 and thus could not
recover good-time credits. Regardless whether Wheeler’s claims were barred
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No. 05-11207
under Heck, the district court did not err in dismissing his claims because he did
not have a liberty interest in any of the rights of which he was deprived at the
hearing. See Malchi v. Thaler, 211 F.3d 953, 958-59 (5th Cir. 2000) (holding that
30-day loss of cell and commissary privileges does not implicate due process
concerns); Berry v. Brady, 192 F.3d 504, 508 (5th Cir. 1999); Madison v. Parker,
104 F.3d 765, 767-68 (5th Cir. 1997); Luken v. Scott, 71 F.3d 192, 193 (5th Cir.
1995) .
Wheeler’s appeal is without arguable merit and is thus frivolous. See
Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Accordingly, we dismiss
his appeal as frivolous. 5TH CIR. R. 42.2. The dismissal of this appeal as
frivolous and the district court’s dismissal of Wheeler’s complaint as frivolous
count as two strikes under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103
F.3d 383, 385-87 (5th Cir. 1996). Wheeler is warned that if he accumulates three
strikes under § 1915(g), he will not be able to 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 § 1915(g).
APPEAL DISMISSED; SANCTION WARNING ISSUED.
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