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Walker v. Price, 99-40170 (1999)

Court: Court of Appeals for the Fifth Circuit Number: 99-40170 Visitors: 23
Filed: Dec. 28, 1999
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 99-40170 Summary Calendar JOE WALKER, Plaintiff-Appellant, versus KEITH J. PRICE, Warden, Coffield Unit; UNIDENTIFIED DEPOT, Captain, Coffield Unit; LILLIAN JOHNSON, Correctional Officer, Coffield Unit; CAROLYN WALLS, Correctional Officer, Coffield Unit; BENNIE L. COLEMAN, Sergeant, Coffield Unit, Defendants-Appellees. - Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:98-CV-506 - December 23
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               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 99-40170
                         Summary Calendar


JOE WALKER,

                                         Plaintiff-Appellant,

versus

KEITH J. PRICE, Warden, Coffield Unit;
UNIDENTIFIED DEPOT, Captain, Coffield Unit;
LILLIAN JOHNSON, Correctional Officer,
Coffield Unit; CAROLYN WALLS, Correctional
Officer, Coffield Unit; BENNIE L. COLEMAN,
Sergeant, Coffield Unit,

                                         Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                       USDC No. 6:98-CV-506
                       --------------------

                         December 23, 1999

Before JOLLY, JONES and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Joe Walker, Texas prisoner #435844, filed a 42 U.S.C. § 1983

complaint against Warden Keith J. Price, Captain Depot,

Correctional Officer Lillian Johnson, Correctional Officer

Carolyn Walls, and Sergeant Bennie L. Coleman.   He argues that

the district court erred in dismissing his complaint as frivolous

and for failure to state a claim.


     *
        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that this opinion should not be published and is not precedent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. 99-40170
                                 -2-

     This court reviews a dismissal under § 1915(e)(2)(B)(ii) de

novo, applying the same standard used to review a dismissal under

Fed. R. Civ. P. 12(b)(6).     Black v. Warren, 
134 F.3d 732
, 734

(5th Cir. 1998).   The dismissal may be upheld only if it appears

that no relief could be granted under any set of facts that could

be proven consistent with the allegations.     McGrew v. Texas Bd.

of Pardons & Paroles, 
47 F.3d 158
, 160 (5th Cir. 1995).

     A reviewing court will disturb a district court’s dismissal

of a pauper’s complaint as frivolous only on finding an abuse of

discretion.   A district court may dismiss a complaint as

frivolous “‘where it lacks an arguable basis either in law or in

fact.’”   Denton v. Hernandez, 
504 U.S. 25
, 31-33 (1992)(quoting

Neitzke v. Williams, 
490 U.S. 319
, 325 (1989)); see also Siglar

v. Hightower, 
112 F.3d 191
, 193 (5th Cir. 1997)(relying on

§ 1915(e)(2)(B)(i)).

     “[A] prisoner may have a protected liberty interest in

prison grievance procedures[.]”     Gartrell v. Gaylor, 
981 F.2d 254
, 259 (5th Cir. 1993).   “To assure that prisoners do not

inappropriately insulate themselves from disciplinary actions by

drawing the shield of retaliation around them, trial courts must

carefully scrutinize these claims.”     Woods v. Smith, 
60 F.3d 1161
, 1166 (5th Cir. 1995).    To state a claim of retaliation, an

inmate must allege the violation of a specific constitutional

right and be prepared to establish that, but for the retaliatory

motive, the complained of incident would not have occurred.        
Id. “This places
a significant burden on the inmate.”     
Id. The inmate
must produce direct evidence of motivation or “allege a
                           No. 99-40170
                                -3-

chronology of events from which retaliation may plausibly be

inferred.”   
Id. (citation omitted);
see also Whittington v.

Lynaugh, 
842 F.2d 818
, 821 (5th Cir. 1988)(inmate alleging

retaliation must allege facts, not merely conclusions, in support

of his claims).   Verbal threats and name-calling by prison guards

do not amount to a constitutional violation.   See Bender v.

Brumley, 
1 F.3d 271
, 274 n.4 (5th Cir. 1993)(pretrial detainee

case)(allegations of verbal abuse and threats by prison officials

do not state a claim under § 1983); Lynch v. Cannatella, 
810 F.3d 1363
, 1376 (5th Cir. 1987)(same).

     Walker’s allegations in his complaint relative to Walls and

Johnson’s verbal harassment do not state a constitutional claim

cognizable under § 1983.   
Bender, 1 F.3d at 274
n.4.   Nor has

Walker shown that the district court erred in dismissing his

retaliatory-transfer claim against Price.   See Olim v.

Wakinekona, 
461 U.S. 238
, 244-45 (1983); see also Hewitt v.

Helms, 
459 U.S. 460
, 468 (1983) (holding “the transfer of an

inmate to less amenable and more restrictive quarters for

nonpunitive reasons is well within the terms of confinement

ordinarily contemplated by a prison sentence”); Meachum v. Fano,

427 U.S. 215
, 224-25 (1976).   The judgment of the district court

dismissing these claims is AFFIRMED.

     With regard to Walker’s allegation that Walls filed

retaliatory disciplinary cases, a review of the complaint reveals

that Walker stated a nonfrivolous retaliation claim.    The

judgment dismissing the claim is VACATED, and the case is

REMANDED for further proceedings.
                            No. 99-40170
                                 -4-

     We also find error in the district court’s dismissal of

Walker’s retaliatory-assault claim against Coleman for failure to

exhaust state remedies.   Because Walker is seeking monetary

relief only, it is possible that he was not required to pursue

administrative remedies prior to filing suit.     See Whitley v.

Hunt, 
158 F.3d 882
, 887 (5th Cir. 1998)(clarifying that under

1997e, as amended by the Prison Litigation Reform Act, a federal

prisoner need not exhaust administrative remedies that are not

capable of providing redress); see Marsh v. Jones, 
53 F.3d 707
,

710 (5th Cir. 1995).

     The district court’s dismissal of Walker’s retaliatory-

assault claim against Coleman for nonexhaustion is VACATED, and

the claim is REMANDED for the district court to address whether

monetary relief is available through the Texas Department of

Criminal Justice grievance procedure.

     We further find error in the district court’s dismissal of

Walker’s retaliatory-job-reassignment claim.    A prisoner has no

constitutional right to a specific work assignment.     See Jackson

v. Cain, 
864 F.2d 1235
, 1248 n.3 (5th Cir. 1989).    However, a job

transfer cannot be made in retaliation against the exercise of

constitutional rights.    
Id. Walker has
met the threshold

requirement of alleging a retaliatory-job-reassignment claim.

     The district court also erred in dismissing Walker’s claim

against Depot.   This court has recognized that a prisoner may

have a protected liberty interest in the prison grievance

procedure.   See 
Gartrell, 981 F.2d at 259
.    Walker alleged that

Depot destroyed his grievances in retaliation for his use of the
                            No. 99-40170
                                 -5-

prison grievance procedure.    Walker’s claim has an arguable basis

in law.

     We make no suggestion as to the ultimate outcome of these

claims.    We decide only that the dismissal of these claims was

error.    See Siglar v. Hightower, 
112 F.3d 191
, 193 (5th Cir.

1997).

     AFFIRMED IN PART; VACATED AND REMANDED IN PART.

Source:  CourtListener

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