Hailey v. Savers

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 18, 2007
Charles R. Fulbruge III
Clerk
No. 06-10610
Summary Calendar
TONY LYNN HAILEY,
Plaintiff-Appellant,
versus
MICHAEL SAVERS, Assistant Warden; AMY LOWREY, Counsel
Substitute; DENNIS J. MARKGRAFF, Captain; EDEN GREEN,
Grievance Investigator; TERRY BUCK, Mailroom Supervisor;
LISA CONNERS, Grievance Investigator; DAVIDE BASS, Doctor;
ROBERTA HOLLERS, Nurse; PATRICE MAXEY, Medical Administrator;
GARY MESSER; HELEN HARRISON,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:05-CV-297
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Before HIGGINBOTHAM, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Tony Lynn Hailey, Texas prisoner # 911414, proceeding in
forma pauperis and pro se, appeals from the district court’s
dismissal with prejudice of his 42 U.S.C. § 1983 civil rights
complaint as frivolous and for failure to state a claim. In his
complaint, Hailey argued that numerous officials at the Texas
Department of Criminal Justice (TDCJ) Dalhart Unit retaliated
*
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this opinion should not be published and is not precedent except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. 06-10610
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against him for filing grievances, engaged in acts of deliberate
indifference to his safety and medical needs, conspired against
him, and denied him access to the courts. Our review is de novo.
Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005).
Retaliation
Hailey asserts that Savers retaliated against him and found
him guilty of a disciplinary violation because Hailey mailed to
the regional director of the prison unit an amendment to a life
endangerment complaint that alleged misconduct by Savers and
other prison officials. Hailey contends that he was punished
with 15 days in solitary confinement, 30 days without recreation
or commissary privileges, and a reduction in line class status.
Hailey’s punishments are not the type of hardships that give
rise to a liberty interest protected by due process. See Madison
v. Parker, 104 F.3d 765, 768 (5th Cir. 1997). Hailey’s claim
concerning Savers’s disciplinary reports does not implicate
Hailey’s constitutional rights. See Castellano v. Fragozo, 352
F.3d 939, 942 (5th Cir. 2003).
Deliberate indifference
Hailey asserts that Savers was aware of grievances regarding
nerve damage and pain in Hailey’s back and knees and that Savers
acted with deliberate indifference to Hailey’s inability to
perform field work. Hailey contends that Savers did not act in
accordance with his supervisory responsibilities and did not
relieve Hailey from his assigned work detail. Hailey’s
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conclusional allegations are insufficient to establish that
Savers knew of and disregarded the risk that Hailey would suffer
injury if he was not assigned to a different work detail. See
Domino v. Texas Dep’t of Criminal Justice, 239 F.3d 752, 756 (5th
Cir. 2001); Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990)
Hailey argues that Dr. Basse, a physician at the Dalhart
Unit, and Maxey, a medical administrator at the Dalhart Unit,
acted with deliberate indifference to his medical needs. Hailey
argues that although Basse did not assign Hailey to field work,
Basse had a duty to reimpose a work restriction for Hailey to
prevent harm to his injured back and knee. Hailey argues that
Maxey failed to intervene as a supervisor after he was notified
of Hailey’s grievances against Basse.
Hailey does not brief the district court’s conclusion that
Basse was unaware of any risk of harm from Hailey’s job
assignment. Rather, Hailey argues only in a conclusional fashion
that Basse should have imposed a work restriction after he became
aware of Hailey’s pain. See Domino, 239 F.3d at 756. To the
extent that Hailey sues Maxey in his role as a supervisor, Hailey
has failed to allege specific facts to demonstrate that Maxey had
personal involvement in placing Hailey in a job assignment that
posed a substantial risk of harm or that Maxey implemented
policies to physically harm Hailey. See Thompkins v. Belt, 828
F.2d 298, 303-04 (5th Cir. 1987).
No. 06-10610
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Conspiracy
Hailey contends that Lowrey, a substitute counsel employed
by the Dalhart Unit, conspired with Savers and did not
investigate Hailey’s claims and present a reasonable defense at
Hailey’s disciplinary hearing. Hailey asserts that Markgraff
discovered that he had been included in Hailey’s life
endangerment amendment letter and conspired with other prison
officials to retaliate against Hailey for filing a disciplinary
complaint. Hailey asserts that Markgraff was not an impartial
disciplinary hearing officer.
Hailey’s conclusional allegations against Lowrey and
Markgraff do not include facts sufficient to support a conspiracy
claim. See Rodriguez v. Neeley, 169 F.3d 220, 222 (5th Cir.
1999); Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990).
Further, Hailey’s punishment as a result of the disciplinary
proceedings do not implicate a liberty interest. See Madison,
104 F.3d at 768.
Hailey argues that Green and Conners, grievance
investigators at the Dalhart Unit, participated in a conspiracy
to retaliate against him. He argues that Green falsified the
receipt date on Hailey’s grievance appealing his disciplinary
punishment and that Conners refused to file his grievance.
Hailey provides no material facts in support of his claim that
Green and Conners acted maliciously with respect to the filing of
his grievances. See Al-Ra’id v. Ingle, 69 F.3d 28, 32 (5th Cir.
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1995)(generalized assertions and conclusional allegations are
insufficient to establish malice). Moreover, any failure of
these defendants to comply with the TDCJ filing procedures is
insufficient to establish a constitutional violation. See
Jackson v. Cain, 864 F.2d 1235, 1251-52 (5th Cir. 1989). To the
extent that Hailey seeks to raise an independent claim of
malicious prosecution against Green, this claim is non-actionable
under § 1983. See Castellano, 352 F.3d at 942.
Access to the courts
Hailey argues that Buck, a mailroom supervisor at the
Dalhart Unit, violated Hailey’s right of access to the courts by
failing to prevent the opening of Hailey’s mail. Hailey does not
allege personal involvement on the part of Buck, nor does Hailey
allege that Buck implemented policies to infringe upon Hailey’s
constitutional rights. See Thompkins v. Belt, 828 F.2d 298, 303-
04 (5th Cir. 1987). Hailey’s claim of supervisory liability is
non-actionable under § 1983. See Alton v. Texas A & M Univ., 168
F.3d 196, 200 (5th Cir. 1999). Further, Hailey does not allege
prejudice as a result of any interference with his mail. See
McDonald v. Steward, 132 F.3d 225, 230-31 (5th Cir. 1998).
Hailey does not brief sufficiently the district court’s
dismissal of his claims of conspiracy against Messer, Harrison,
and of deliberate indifference against Hollers. Hailey also does
not renew his amended claims that Savers denied various
grievances and that Buck delayed and opened his legal mail.
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These claims are thus abandoned. See Brinkmann v. Dallas County
Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
Accordingly, the district court did not err in dismissing
Hailey’s § 1983 claims. See Geiger, 404 F.3d at 373.
Hailey’s appeal is without arguable merit, is frivolous, and
is dismissed. See 5TH CIR. R. 42.2. The dismissal of Hailey’s
§ 1983 complaint and the instant dismissal 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). Hailey is warned that if
he accumulates three strikes, he may no longer 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).
APPEAL DISMISSED; SANCTION WARNING ISSUED.