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Null v. Sanders, 01-10709 (2001)

Court: Court of Appeals for the Fifth Circuit Number: 01-10709 Visitors: 20
Filed: Aug. 31, 2001
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 01-10709 Summary Calendar DAVID NULL, Plaintiff-Appellant, versus D.D. SANDERS, Warden; DANIEL A. ROJAS, Correctional Officer 3; JOSE L. VALENZUELA, Correctional Officer III, Defendants-Appellees. - Appeal from the United States District Court for the Northern District of Texas (2:00-CV-58) - (August 28, 2001 Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges. PER CURIAM:* Plaintiff-Appellant David Null, Texas prisoner #6243
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                   IN THE UNITED STATES COURT OF APPEALS
                           FOR THE FIFTH CIRCUIT



                                No. 01-10709
                              Summary Calendar


DAVID NULL,

                                                 Plaintiff-Appellant,

versus

D.D. SANDERS, Warden;
DANIEL A. ROJAS, Correctional Officer 3;
JOSE L. VALENZUELA, Correctional Officer III,

                                                 Defendants-Appellees.

                         --------------------
             Appeal from the United States District Court
                  for the Northern District of Texas
                             (2:00-CV-58)
                         --------------------
                           (August 28, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

      Plaintiff-Appellant       David   Null,    Texas     prisoner   #624372,

appeals the district court’s dismissal of his 42 U.S.C. § 1983

lawsuit as frivolous and for failure to state a claim on which

relief can be granted.        He contends that the district court erred

in relying upon Heck v. Humphrey, 
512 U.S. 477
(1994), and Edwards

v. Balisok, 
520 U.S. 641
(1997), to dismiss his claims against the

officers who allegedly assaulted him.           Null argues that because he

did   not   lose    any   good-time   credits    through    his   disciplinary


      *
        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that this opinion should not be published and is not precedent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.
proceeding,       he    is   no   longer    “in   custody”      pursuant     to    that

proceeding so that the requirements of Heck need not be fulfilled.

Null has failed to show, however, that he did not in fact lose

good-time credits as a result of the disciplinary proceeding.

Consequently, before he could obtain money damages for the alleged

assault by Officers Rojas and Valenzuela, Null would have to show

that the result of the disciplinary hearing, in which he was

charged with striking an officer, had been overturned.                          As Null

concedes that his disciplinary conviction has not been overturned,

his claims are barred by Heck and Edwards.

     Null also contends that Warden Sanders failed to investigate

adequately    his       grievance   filed      against    Rojas   and     Valenzuela.

Inasmuch as the result of this grievance has no bearing on the

duration    of    his     confinement,      however,     Null     cannot    show    the

existence    of     a    state-created      liberty      interest    in    an    inmate

grievance procedure.          See Orellana v. Kyle, 
65 F.3d 29
, 31-32 (5th

Cir. 1995).

     Null nevertheless advances that Sanders should have known

about the officers’ history of retaliatory beatings of prisoners;

yet he provides nothing other than his unsubstantiated allegation

that such a history exists.           Without more, that is not sufficient

to support a civil rights claim.            See Moody v. Baker, 
857 F.2d 256
,

258 (5th Cir. 1988).

     Null also asserts that Sanders failed to train Valenzuela and

Rojas sufficiently.           As Null has failed to show a causal link

between a failure to train and the alleged violation of his rights,


                                           2
and has failed to show that Sanders had any knowledge of a risk to

Null before Null filed his grievance, this claim fails as well.

See Smith v. Brenoettsy, 
158 F.3d 908
, 911-12 (5th Cir. 1998).

     For the foregoing reasons, the district court’s judgment is,

in all respects, affirmed. We hereby advise Null that the district

court’s dismissal of his complaint as frivolous and for failure to

state a claim on which relief can be granted constitutes one

“strike” for the purposes of 28 U.S.C. § 1915(g), see Adepegba v.

Hammons, 
103 F.3d 383
, 388 (5th Cir. 1996); and that if he receives

two more “strikes,” he will not be permitted to 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 28 U.S.C. § 1915(g).

AFFIRMED; SANCTIONS WARNING ISSUED.




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Source:  CourtListener

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