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Rogers v. Flores, 01-40102 (2001)

Court: Court of Appeals for the Fifth Circuit Number: 01-40102 Visitors: 34
Filed: Aug. 23, 2001
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 01-40102 Conference Calendar JOHNNY E. ROGERS ET AL., Plaintiffs, JAMES A. ISAAC, Plaintiff-Appellant, versus GREGG FLORES; ARTHUR JAMES; TERRY ADKINS; RICHARD LAPOINTE; JACKIE EDWARDS, Defendants-Appellees. - Appeal from the United States District Court for the Southern District of Texas No. G-98-CV-615 - August 21, 2001 Before KING, Chief Judge, and POLITZ and PARKER, Circuit Judges. PER CURIAM:* James Isaac, Texas prisoner # 6779
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               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                              No. 01-40102
                          Conference Calendar



JOHNNY E. ROGERS ET AL.,

                                           Plaintiffs,

JAMES A. ISAAC,
                                           Plaintiff-Appellant,

versus

GREGG FLORES; ARTHUR JAMES; TERRY ADKINS;
RICHARD LAPOINTE; JACKIE EDWARDS,

                                           Defendants-Appellees.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                         No. G-98-CV-615
                      --------------------
                         August 21, 2001

Before KING, Chief Judge, and POLITZ and PARKER, Circuit Judges.

PER CURIAM:*

     James Isaac, Texas prisoner # 677940, appeals from the

dismissal of his 42 U.S.C. § 1983 complaint as frivolous pursuant

to 28 U.S.C. § 1915(e)(2).    Isaac argues that the district court

erred when it did not grant him leave to amend the complaint

prior to its dismissal.

     Isaac’s argument that the district court abused its

discretion in refusing to allow him to amend his complaint is

     *
        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that this opinion should not be published and is not precedent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. 01-40102
                                  -2-

factually frivolous.   He did amend his complaint once, and he did

not seek permission to amend or present a second complaint after

the magistrate judge had recommended dismissal.

     Issac further argues that the district court erred when it

dismissed his complaint as frivolous based on its determination

that he had not alleged a constitutional violation.     Issac argues

that the defendants violated his substantive due process rights

by re-assigning him to a more onerous job in retaliation for his

good-faith use of the prison grievance system.

     To state a claim of retaliation, an inmate must allege (1) a

specific constitutional right, (2) the defendant’s intent to

retaliate against the prisoner for his or her exercise of that

right, (3) a retaliatory adverse act, and (4) causation.     Jones

v. Greninger, 
188 F.3d 322
, 324-25 (5th Cir. 1999).

     Isaac cannot establish that he was retaliated against for

exercise of his constitutional right to use the prison grievance

system.   See Jackson v. Cain, 
864 F.2d 1235
, 1249 (5th Cir. 1989)

(recognizing that right).    Although he argues that he was demoted

to a less desirable job in retaliation for filing grievances, the

grievance forms as well as his pleadings reveal that he did not

begin to file grievances until after he had received his job

re-assignment.   The district court therefore did not err in

dismissing his complaint.    Isaac’s appeal is without arguable

merit and is frivolous.     Howard v. King, 
707 F.2d 215
, 219-20

(5th Cir. 1983).   The appeal is therefore DISMISSED.   5TH CIR. R.

42.2.

Source:  CourtListener

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