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Morgan v. Dretke, 98-20469 (1999)

Court: Court of Appeals for the Fifth Circuit Number: 98-20469 Visitors: 43
Filed: Nov. 30, 1999
Latest Update: Mar. 02, 2020
Summary: UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 98-20469 Summary Calendar _ GARY LYNN MORGAN, Plaintiff-Appellant, versus DOUGLAS DRETKE, Warden; EARL FOX; BILL GRAY; JERRY BARRETT, Defendants-Appellees. _ Appeal from the United States District Court for the Southern District of Texas USDC No. H:97-CV-941 _ November 26, 1999 Before JOLLY, JONES, and BENAVIDES, Circuit Judges. PER CURIAM:* Gary Lynn Morgan, Texas Prisoner No. 689634, appeals the district court’s dismissal of his 42 U.S
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                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT

                        _____________________

                             No. 98-20469
                           Summary Calendar
                        _____________________

GARY LYNN MORGAN,

                                                Plaintiff-Appellant,

                                versus

DOUGLAS DRETKE, Warden; EARL FOX;
BILL GRAY; JERRY BARRETT,

                                            Defendants-Appellees.
_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
                       USDC No. H:97-CV-941
_________________________________________________________________

                          November 26, 1999

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Gary Lynn Morgan, Texas Prisoner No. 689634, appeals the

district court’s dismissal of his 42 U.S.C. § 1983 prisoner civil

rights claim as frivolous after a Spears1 hearing.   All of Morgan’s

outstanding motions are DENIED.     Morgan’s allegation that he was

forced to work in the utility squad after an injury is, at best, a

claim of negligence; the district court thus did not abuse its

discretion in dismissing the claim.      See Varnado v. Lynaugh, 
920 F.2d 320
, 321 (5th Cir. 1991).    Morgan’s argument that his First

     *
      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this opinion should not be published and is not precedent except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.
     1
      Spears v. McCotter, 
766 F.2d 179
(5th Cir. 1985).
Amendment right to freedom of speech was violated when he was

punished for sending a letter to a prison guard that “expressed his

feelings” for her lacks merit.       See Gibbs v. King, 
779 F.2d 1040
,

1045 (5th Cir. 1986).        Morgan has not argued or shown that his

punishment   for   sending    the   letter   imposed   an   “atypical   and

significant hardship on the inmate in relation to the ordinary

incidents of prison life.”      See Sandin v. Conner, 
515 U.S. 472
, 484

(1995); Orellana v. Kyle, 
65 F.3d 29
, 31 (5th Cir. 1995).

     Finally, the district court did not abuse its discretion in

dismissing Morgan’s failure-to-protect claim as frivolous.              See

Davidson v. Cannon, 
474 U.S. 344
, 347-48 (1986); Neals v. Norwood,

59 F.3d 530
, 533 (5th Cir. 1995).

                             AFFIRMED; ALL OUTSTANDING MOTIONS DENIED.




                                     2

Source:  CourtListener

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