Filed: Sep. 15, 1995
Latest Update: Mar. 02, 2020
Summary: UNITED STATES COURT OF APPEALS for the Fifth Circuit _ No. 95-30217 Summary Calendar _ DAVID BOUDREAUX, Plaintiff-Appellant, VERSUS CHARLES FOTI, Sheriff, Etc., ET AL., Defendants-Appellees. _ Appeal from the United States District Court for the Eastern District of Louisiana (94-CV-2499) _ (September 26, 1995) Before DAVIS, BARKSDALE and DeMOSS, Circuit Judges. PER CURIAM:1 Boudreaux challenges the district court's dismissal of his § 1983 suit against a number of defendants as frivolous under §
Summary: UNITED STATES COURT OF APPEALS for the Fifth Circuit _ No. 95-30217 Summary Calendar _ DAVID BOUDREAUX, Plaintiff-Appellant, VERSUS CHARLES FOTI, Sheriff, Etc., ET AL., Defendants-Appellees. _ Appeal from the United States District Court for the Eastern District of Louisiana (94-CV-2499) _ (September 26, 1995) Before DAVIS, BARKSDALE and DeMOSS, Circuit Judges. PER CURIAM:1 Boudreaux challenges the district court's dismissal of his § 1983 suit against a number of defendants as frivolous under § 1..
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UNITED STATES COURT OF APPEALS
for the Fifth Circuit
_____________________________________
No. 95-30217
Summary Calendar
_____________________________________
DAVID BOUDREAUX,
Plaintiff-Appellant,
VERSUS
CHARLES FOTI, Sheriff, Etc., ET AL.,
Defendants-Appellees.
______________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
(94-CV-2499)
______________________________________________________
(September 26, 1995)
Before DAVIS, BARKSDALE and DeMOSS, Circuit Judges.
PER CURIAM:1
Boudreaux challenges the district court's dismissal of his §
1983 suit against a number of defendants as frivolous under §
1915(d) and against other defendants for failure to state a claim.
We affirm.
David Boudreaux, Sr., a convicted prisoner presently
incarcerated at the Louisiana State Penitentiary at Angola, filed
this pro se, in forma pauperis (IFP) civil rights complaint, 42
1
Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
U.S.C. § 1983, against Orleans Parish Sheriff Charles C. Foti, Jr.,
Jefferson Parish Sheriff Harry Lee, 24th Judicial District Judge
Clarence McManus, Jefferson Parish Juvenile Judge Ann Keller,
Indigent Defender Michael Rochs, and Indigent Defender Russell
Stegeman. Following several transfers, Boudreaux amended his
complaint to name as additional defendants C.M. Lensing, the warden
of the Hunt Correctional Facility, and John P. Whitley, the warden
of the Louisiana State Penitentiary at Angola. The plaintiff
alleges violations of both federal and state created rights and
seeks monetary damages of $l,000,000, a declaratory judgment that
the defendants violated his civil rights, and injunctive relief
"against all persons" in the event of retaliation against him for
filing the complaints. Most of Boudreaux's allegations relate to
his first transfer, from the Jefferson Parish Correctional Center
to the Orleans Parish Prison System. His general claim is that the
actions of the various defendants denied him access to his
attorneys and to the courts.
This court will uphold the dismissal of IFP claims that are
frivolous unless the district court abused its discretion. Denton
v. Hernandez, 504 U.S. 25, 33 (1992); Ancar v. Sara Plasma, Inc.,
964 F.2d 465, 468 (5th Cir. 1992).
Boudreaux states that Judges McManus and Keller violated his
rights by appointing counsel Stegeman and Rochs, whom he claims he
did not have access to after his transfer from the Jefferson to the
Orleans Parish facility. Boudreaux has not identified any facts
supporting his allegations against Judge McManus and Judge Keller.
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Nor has he suggested that they acted outside their jurisdictions,
thereby losing the protection of judicial immunity. Malina v.
Gonzales, 994 F.2d 1121, 1124 (5th Cir. 1993). The district court
correctly dismissed this claim as frivolous.
Boudreaux's suit against his court appointed counsel
presumably is based upon his claim that he had difficulty
contacting them while in the Orleans Parish Prison System. The
district court correctly dismissed this § 1983 action against
attorneys Rochs and Stegeman because neither is a state actor for
purposes of § 1983. Polk County v. Dodson, 454 U.S. 312, 324-25
(1981); Mills v. Criminal Dist. Court No. 3,
837 F.2d 677, 679 (5th
Cir. 1988). The claim, therefore, is legally frivolous.
Jefferson Parish Sheriff Harry Lee and Orleans Parish Sheriff
Charles C. Foti, Jr. are the last two defendants named by Boudreaux
in connection with his transfer from Jefferson to Orleans Parish.
His claims against them are also baseless. Section 1983 does not
create substantive rights but provides a civil remedy for the
violation of protected life, liberty, or property interests.
Blackburn v. City of Marshall, 42 F.3d 925, 935 (5th Cir. 1995);
San Jacinto Savings & Loan v. Kacal,
928 F.2d 697, 700 (5th Cir.
1991). Boudreaux has alleged no such a violation. An inmate
generally has no constitutional right to be imprisoned in any
particular institution, even if life in one institution is less
desirable. Maddox v. Thomas,
671 F.2d 949, 950 (5th Cir. 1982).
Moreover, in a recent decision the Supreme Court recognized that a
prisoner's claim that state prison regulations or statutes have
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been violated will not support a § 1983 suit unless the violations
produce conditions that are "atypical and [a] significant hardship
. . .in relation to the ordinary incidents of prison life." Sandin
v. Conner, 115 S. Ct. 2293, 2300 (1995). In other words, the
condition must be severe enough to implicate the Due Process Clause
"of its own force."
Id. Intrastate prison transfers do not
qualify. See
id. at 2297 (citing Meachum v. Fano,
427 U.S. 215,
225 (1976)). Finally, Boudreaux alleges some specific facts
regarding limitation of telephone and mail privileges in support of
his argument that the sheriffs denied him access to the court and
to his attorneys. To state a cause of action, however, a plaintiff
must connect such allegations to prejudice in a specific legal
proceeding. See Walker v. Navarro County Jail,
4 F.3d 410, 413
(5th Cir. 1993); Richardson v. McDonnell,
841 F.2d 120, 122 (5th
Cir. 1988). Boudreaux has not done so. The district court,
therefore, correctly dismissed the suits against Sheriff Foti and
Lee as frivolous.
In short, the record and the law support the dismissal under
28 U.S.C. § 1915(d) of Boudreaux's actions against Judges McManus
and Keller, attorneys Rochs and Russell, and Sheriffs Lee and Foti.
As there is no abuse of discretion, the district court's decision
is affirmed.
Boudreaux's last claims, those against Wardens Lensing and
Whitley, arise from his transfer to their prisons. As the district
court dismissed these actions for failure to state a claim, Fed. R.
Civ. P. 12(b)(6), this Court reviews the decisions de novo and will
4
not affirm if the allegations support relief on any theory. Cinel
v. Connick, 15 F.3d 1338, 1341 (5th Cir.), cert. denied,
115 S. Ct.
189 (1994). For reasons stated above, the plaintiff has no right
to be imprisoned in any particular institution. Nor will his
allegations that the defendants violated state prison regulations
or laws support a § 1983 claim under these circumstances.
Likewise, his more specific claims regarding limited telephone
access cannot succeed because the prisoner has not linked them to
prejudice in a particular case. Finally, Boudreaux does not allege
that either defendant personally participated in the complained of
activity, implemented an affirmatively wrongful policy, or breached
an affirmative duty imposed on him by state law. A plaintiff
cannot maintain an action against an official in his individual
capacity without alleging a causal connection between the
official's actions and the violation. Woods v. Edwards,
51 F.3d
577, 583 (5th Cir. 1995); see Lozano v. Smith,
718 F.2d 756, 768
(5th Cir. 1983). The district court, therefore, correctly
dismissed this action against Wardens Lensing and Whitley for
failure to state a claim.
We have considered Boudreaux's remaining arguments that the
district court erred in refusing to allow him to make an additional
amendment to his petition, in failing to order service of process
on the original defendants, and in declining to appoint counsel to
assist him in this suit. We are satisfied that the district court
did not abuse its discretion.
AFFIRMED.
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