Case: 10-30074 Document: 00511283046 Page: 1 Date Filed: 11/03/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                          November 3, 2010
                                     No. 10-30074
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

CLARENCE RANDOLPH, JR.,

                                                   Plaintiff - Appellant

v.

G. LONDON, Captain; JAMES LEBLANC, Secretary of the Department of
Corrections,

                                                   Defendants - Appellees


                    Appeal from the United States District Court
                        for the Middle District of Louisiana
                              USDC No. 3:09-CV-179


Before WIENER, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Proceeding pro se, Clarence Randolph, Jr., Louisiana prisoner # 480981,
appeals the dismissal of his 42 U.S.C. § 1983 complaint pursuant to Federal
Rules of Civil Procedure 12(b)(6) and 56 and 28 U.S.C. § 1915(e)(2)(B)(i).
       Randolph contends the district court erred by: (1) granting summary
judgment on his claims against Secretary LeBlanc based on a lack of exhaustion;
(2) dismissing his claims against Captain London in his official capacity,


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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                                 No. 10-30074

concluding they were not cognizable under § 1983; (3) dismissing his claims
against Captain London in his individual capacity as frivolous under § 1915(e);
and (4) denying him relief because defendants failed to comply with discovery
orders.
      A summary judgment is reviewed de novo. E.g., Cousin v. Small, 

, 637 (5th Cir. 2003); Powe v. Ennis, 

, 394 (5th Cir. 1999)
(standard of review for dismissal due to failure to exhaust administrative
remedies de novo). A motion to dismiss being granted pursuant to Rule 12(b)(6)
is likewise reviewed de novo. E.g., Dorsey v. Portfolio Equities, Inc., 

, 338 (5th Cir. 2008). Dismissal of a claim as frivolous is reviewed for abuse
of discretion. E.g., Black v. Warren, 

, 734 (5th Cir. 1998). Finally,
discovery rulings are reviewed for abuse of discretion. E.g., Duke v. University
of Texas at El Paso, 

, 995 (5th Cir. 1984).
      The district court was correct in concluding Randolph failed to exhaust his
administrative remedies concerning Secretary LeBlanc’s administrative rulings.
Under 42 U.S.C. § 1997e(a), a prisoner must exhaust administrative remedies
before filing suit. See Jones v. Bock, 

, 202 (2007).      Randolph
presents no evidence supporting his contention there is an exception to this rule
for claims based upon a defendant’s adverse ruling in the administrative-remedy
process. Moreover, Randolph presents no evidence to establish a genuine issue
of material fact on whether he properly exhausted his administrative remedies
against Secretary LeBlanc. Thus, the district court properly granted summary
judgment on this ground. See 

; 

.
      The district court dismissed Randolph’s claims against Captain London in
his official capacity, concluding they were not cognizable under § 1983. Because
Randolph does not specifically challenge this basis for the dismissal, any such
claim is deemed abandoned. See Brinkmann v. Dallas County Deputy Sheriff
Abner, 

, 748 (5th Cir. 1987).



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                                  No. 10-30074

      Randolph’s claims against Captain London in his individual capacity were
based upon allegations of retaliation for filing a grievance. Although Captain
London did not move for dismissal of Randolph’s claims against him in his
individual capacity, the district court properly concluded they were frivolous and
should be dismissed under § 1915(e).
      First, Randolph’s allegations of verbal abuse do not rise to the level of a
constitutional violation and may not serve as the basis for § 1983 claims. See
Bender v. Brumley, 

, 274 n.4 (5th Cir. 1993). To the extent Randolph
asserts Captain London’s profanity rose to the level of retaliation, any such harm
is de minimis. See Morris v. Powell, 

, 686 (5th Cir. 2006).
      Second, Captain London’s alleged failure to follow prison procedures and
regulations for Randolph’s job transfer is insufficient without additional facts to
establish a constitutional violation. See Edwards v. Johnson, 

, 779
(5th Cir. 2000).
      Third, Randolph fails to present “direct evidence of motivation” or “a
chronology of events from which retaliation may plausibly be inferred” in
support of his contention that Captain London transferred Randolph in
retaliation for his refusal to dismiss a grievance against another prison officer.
Woods v. Smith, 

, 1166 (5th Cir. 1995) (internal quotations and
citations omitted).
      Last, the district court concluded Randolph’s allegations of denial of
medical care were not sustainable because there was no evidence Captain
London was responsible for the quality of Randolph’s medical care. Because he
does not dispute this assertion, any such contention is therefore abandoned. See

.       Moreover, to the extent Randolph contends
Captain London’s actions ultimately endangered him and led to his physical
injuries, Randolph has not established deliberate indifference because he has not
shown Captain London was “aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists” or that Captain London

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                                  No. 10-30074

“also dr[e]w the inference” of harm. Farmer v. Brennan, 

, 837
(1994).
      Randolph makes various allegations that could be construed as assertions
the district court erred in denying him relief because defendants failed to comply
with discovery orders. He contends: he never received copies of his medical
records, in violation of the magistrate judge’s order under Rule 26(a)(1); and
defendants failed to “provide” a request for admissions under Rule 36.
      In any event, both assertions would fail.      With respect to a claimed
violation of Rule 26(a)(1), seven months passed between filing the discovery
order and issuance of the report and recommendation, and Randolph never filed
a motion to compel discovery as advised by the magistrate judge. Additionally,
given the bases for the district court’s resolution of his medical-care claim, any
error is harmless because Randolph has not shown the records would have
assisted such a claim.
      Additionally, Rule 36 does not require a party to request admissions. To
the extent Randolph asserts defendants failed to respond to his request for
admissions, he never made one. To the extent he contends defendants failed to
respond appropriately to his requests for production of documents and
interrogatories, his conclusional assertions of error are insufficient to warrant
relief. See Yohey v. Collins, 

, 224-25 (5th Cir. 1993).
      AFFIRMED.




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