IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-20246 Summary Calendar _____________________
RALPH W. FOWLER,
Plaintiff-Appellant,
v.
JAMES A. LYNAUGH, ET AL.,
Defendants- Appellees.
_________________________________________________________________
Appeal from the United States District Court for the Southern District of Texas (CA-H-93-2516) _________________________________________________________________ (October 3, 1995) Before KING, SMITH, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Texas Department of Criminal Justice inmate Ralph W. Fowler
brought this § 1983 civil rights action against various TDCJ
officials, alleging constitutional violations arising from a
housing transfer, disciplinary proceedings, and a work
reassignment. The district court granted the defendants' motion
for summary judgment on the claims arising from the disciplinary
proceeding and dismissed Fowler's other claims as frivolous.
* 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 Pursuant to that Rule, the court has determined that this opinion should not be published. Fowler appeals. We affirm in part and vacate and remand in part
the judgment of the district court.
I. FACTUAL AND PROCEDURAL BACKGROUND
Proceeding pro se and in forma pauperis, Texas Department of
Criminal Justice ("TDCJ") inmate Ralph W. Fowler ("Fowler") filed
this § 1983 civil rights action, alleging that various TDCJ
officials violated his Eighth and Fourteenth Amendment rights.
Fowler named as defendants TDCJ directors James Lynaugh, James
Collins, Wayne Scott, John Stice, and Kent Ramsey. He also named
M. B. Thaler, Jim Gant, and George Pierson, who were wardens at
TDCJ's Ellis One Unit where Fowler was incarcerated, and
correctional officers Captain Timothy Massey, Captain Leonard
Ellis, Lieutenant R. W. Lee, and Sergeant Carl Vest. Finally, he
named TDCJ employee Robert Wise, who served as Fowler's counsel
substitute during his disciplinary proceedings.
Fowler alleged that on March 8, 1993, Sergeant Vest observed
him talking to inmate Larry English and ordered him to report to
Captain Ellis's office. Fowler claimed that he was then strip-
searched, questioned, and asked to take a urine analysis. When
Fowler refused to take the urine analysis, Captain Ellis
allegedly told him that he was not going back to his wing "a
hero" and that he would be moved from his cell to a dormitory "in
order to make it appear that I was being reward[ed] for
snitching." Fowler was moved to a dormitory and inmate English
was moved to pre-hearing detention. As a result, Fowler alleged,
2 the prison grapevine "had it out" that he was Captain Ellis's
snitch and that a "hit" was out on him.
After testifying on English's behalf at a disciplinary
hearing on March 11, Fowler was charged by Sergeant Vest with
possession and use of marijuana and with being out of place. At
the disciplinary hearing on this charge, Captain Massey presided
as hearing officer. Upon recommendation of his counsel
substitute, Robert Wise, Fowler pleaded guilty to being out of
place. He was reclassified to close-custody, lost 365 days of
good-time credits, and received 30 days of commissary
restriction. When Fowler asked Wise for a transcript of his
disciplinary hearing so that he could appeal, Wise stated that he
could provide only a copy of the hearing disposition and an
audiotape of the hearing.
According to Fowler, he was also reassigned to perform
physical labor on a "hoe squad" in further retaliation for
testifying at English's disciplinary hearing. Fowler asserts
that this reassignment was unusual because he has "very limited
mobility, being partially paralyzed since the age of (4)four."
Fowler walks with a cane and a leg brace and was "humiliated" and
"angered" by the job change. Fowler alleged that he spoke with
Warden Gant about the job assignment and that Gant stated that he
would look into it and also would reopen Fowler's disciplinary
case. After approximately two weeks, Fowler was reassigned to
his original job in the laundry room.
3 Warden Gant returned Fowler's first grievance because Fowler
had failed to sign it. Warden Pierson subsequently denied this
grievance. Directors Ramsey and Stice denied Fowler's second and
third grievances. Fowler also filed an internal affairs
complaint, which Lieutenant Lee denied.
In the present action, Fowler alleged that his housing
transfer, disciplinary proceedings, and work reassignment
violated the Eighth Amendment's prohibition of cruel and unusual
punishment. Specifically, he alleged that, because he was
portrayed as a snitch and moved to an open dormitory where other
inmates could easily attack him, he was placed in fear for his
life. He also claimed that the disciplinary proceedings were
brought in retaliation for his testimony on behalf of English and
that the punishment he received for being out of place was
disproportionate to the offense. Finally, Fowler alleged that
his reassignment to the hoe squad also constituted cruel and
unusual punishment because of his medical condition.
Fowler further alleged that the disciplinary proceedings
violated his procedural due process rights under the Fourteenth
Amendment because: (1) an informal resolution was never
attempted; (2) he was not informed properly of the charges; (3)
the disciplinary committee consisted of only one person who was
not impartial; and (4) he was not given adequate notice of the
disciplinary committee's decision.
Warden Gant, Warden Pierson, Captain Massey, Captain Ellis,
and Sergeant Vest were served with the complaint. Gant, Pierson,
4 Massey, and Vest filed motions to dismiss, which the district
court construed as motions for summary judgment. The court
granted the motions with respect to Fowler's claims that the
disciplinary proceedings were retaliatory and violated due
process and that his punishment for being out of place was
disproportionate to the offense.1 The court then dismissed
Fowler's remaining claims as frivolous. Fowler timely appealed.
II. DISCUSSION
Fowler makes the following arguments on appeal: First,
summary judgment was improper on his claim that the disciplinary
proceedings violated his Fourteenth Amendment procedural due
process rights. Second, the district court erred in dismissing
his claim against Captain Ellis that the housing transfer put him
in fear of his life and thus violated the Eighth Amendment.
Third, the district court also erred in dismissing his claim that
his assignment to the hoe squad violated the Eighth Amendment
because such work was cruel and unusual in light of his medical
condition. Finally, the district court should not have dismissed
his action without a Spears hearing. Fowler has apparently
1 The district court also granted summary judgment on a claim for injunctive relief that Fowler had brought against the defendants in their official capacities based on his past treatment. In addition, the court denied Fowler's motions to file amended and supplemental complaints. Fowler does not appeal the court's disposition of these matters.
5 abandoned all other claims.2 We address Fowler's arguments in
turn.
A. Disciplinary Proceedings
Fowler argues that the district court improperly granted
summary judgment on his claim that he was denied due process
during his disciplinary proceedings. He argues that he has
suffered greatly because of "the retaliatory practices of the
One-Man Disciplinary Committee." He also argues that the
disciplinary proceedings violated various consent decrees and
TDCJ policies.3 The defendants counter that the TDCJ's
procedures met the constitutional standard for such proceedings,
and therefore, summary judgment was proper.
We review the granting of summary judgment de novo, applying
the same criteria used by the district court in the first
instance. Norman v. Apache Corp., 19 F.3d 1017, 1021 (5th Cir.
1994); Conkling v. Turner, 18 F.3d 1285, 1295 (5th Cir. 1994).
2 In his reply brief, Fowler also lists as an issue whether the district court erred in granting summary judgment on his claim that discipline was imposed in retaliation for his testimony on behalf of inmate English; however, Fowler makes no legal argument and cites no legal authority in support of this statement. Although we will liberally construe pro se briefs, see Haines v. Kerner, 404 U.S. 519, 520 (1972), we still require arguments to be briefed in order to be preserved. Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993). Claims not adequately argued in the body of the brief are deemed abandoned on appeal. Id. at 224-25. Accordingly, we consider Fowler's argument on the issue of whether his disciplinary proceeding was retaliatory to be abandoned. 3 Fowler does not renew his other due process arguments regarding the disciplinary proceedings. We deem those arguments abandoned. See Yohey, 985 F.2d at 225.
6 First, we consult the applicable law to ascertain the material
factual issues. King v. Chide, 974 F.2d 653, 655-56 (5th Cir.
1992). We then review the evidence bearing on those issues,
viewing the facts and inferences to be drawn therefrom in the
light most favorable to the nonmoving party. Lemelle v.
Universal Mfg. Corp., 18 F.3d 1268, 1272 (5th Cir. 1994); FDIC
v. Dawson, 4 F.3d 1303, 1306 (5th Cir. 1993), cert. denied, 114
S. Ct. 2673 (1994). Summary judgment is proper "if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law."
Fed. R. Civ. P. 56(c).
Under Rule 56(c), the party moving for summary judgment
bears the initial burden of informing the district court of the
basis for its motion and identifying the portions of the record
that it believes demonstrate the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986); Norman, 19 F.3d at 1023. If the moving party meets its
burden, the burden shifts to the non-moving party to establish
the existence of a genuine issue for trial. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986);
Norman, 19 F.3d at 1023. The burden on the non-moving party is
to do more than simply show that there is some metaphysical doubt
as to the material facts. Matsushita, 475 U.S. at 586.
7 Because Fowler's punishment included a loss of good-time
credits, he was entitled to the procedural protections espoused
in Wolff v. McDonnell, 418 U.S. 539 (1974). See Murphy v.
Collins, 26 F.3d 541, 543 n.5 (5th Cir. 1994). Wolff requires:
(1) twenty-four hours advance written notice of the charges
against the prisoner; (2) a written statement by the fact finder
as to the evidence relied upon and reasons for the disciplinary
action taken; and (3) the opportunity to call witnesses and to
present documentary evidence as long as doing so does not create
a security risk. Wolff, 418 U.S. at 563-67. Exhibits submitted
by Fowler unequivocally demonstrate that these requirements were
met.
Although the disciplinary committee in Wolff had three
members, the Supreme Court did not obligate prison officials to
provide a hearing before more than one hearing officer. Fowler
does not otherwise identify such a requirement. Indeed, one of
Fowler's exhibits indicates that TDCJ rules have been changed to
provide that a disciplinary hearing may be held in front of a
single officer. Further, even if we assume that TDCJ officials
failed to follow their own regulations, such violation, without
more, does not give rise to a constitutional violation.
Hernandez v. Estelle, 788 F.2d 1154, 1158 (5th Cir. 1986). To
the extent that Fowler argues that the single-person committee
violated prison consent decrees, we note that remedial court
orders do not create or enlarge constitutional rights. See Green
v. McKaskle, 788 F.2d 1116, 1123 (5th Cir. 1986). Accordingly,
8 we conclude that the district court did not err by granting the
defendants' motions for summary judgment with regard to this
claim.
B. Housing Transfer
Fowler argues that the district court erred in dismissing as
frivolous his claim regarding the housing transfer because he was
subjected to cruel and unusual punishment when Captain Ellis
transferred him to the dormitory to make it appear as though he
had "snitched" on inmate English. Specifically, Fowler contends
that, as a result of being labelled a snitch, he has suffered an
impairment to his reputation, personal humiliation, and mental
anguish associated with the fear of being attacked or killed. He
further argues that, because the transfer subjected him to a
substantial risk of injury, the fact that he was not actually
attacked is irrelevant. The defendants counter that dismissal
was proper because Fowler presented no evidence that he actually
suffered pain as a result of the transfer or that Captain Ellis
was aware of the risk that the transfer would create.
A § 1983 plaintiff who proceeds in forma pauperis is subject
to dismissal if his complaint is "frivolous" within the meaning
of 28 U.S.C. § 1915(d). Under § 1915(d), a complaint is
frivolous if "it lacks an arguable basis in either law or fact."
Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke v. Williams,
490 U.S. 319, 325 (1989). A complaint is legally frivolous if it
is premised on an "indisputably meritless legal theory," Neitzke,
9 490 U.S. at 327. Thus, a complaint that raises an arguable
question of law may not be dismissed under § 1915(d), although it
may be subject to dismissal under Rule 12(b)(6) if the court
ultimately resolves the legal question against the plaintiff.
Id. at 328. A complaint is factually frivolous if "the facts
alleged rise to the level of the irrational or the wholly
incredible, whether or not there are judicially noticeable facts
available to contradict them." Denton, 504 U.S. at 33. The
complaint may not be dismissed as factually frivolous simply
because the court finds the plaintiff's allegations unlikely.
Id.
We review § 1915(d) dismissals for an abuse of discretion
because a determination of frivolousnessSQwhether legal or
factualSQis a discretionary one. Id.; Moore v. Mabus, 976 F.2d
268, 270 (5th Cir. 1992). In reviewing for abuse of discretion,
we consider whether (1) the plaintiff is proceeding pro se, (2)
the court inappropriately resolved genuine issues of disputed
fact, (3) the court applied erroneous legal conclusions, (4) the
court has provided an adequate statement of reasons for dismissal
which facilitates intelligent appellate review, and (5) the
dismissal was with or without prejudice. Denton, 504 U.S. at 34.
We have directed the district courts to distinguish between
findings of factual, legal, or mixed factual and legal
frivolousness and to reflect the considerations identified in
Denton in entering § 1915(d) dismissals. Moore, 976 F.2d at 270.
10 In the case sub judice, the district court determined that
Fowler's claim was frivolous because Fowler did not allege a
deprivation of his Eighth Amendment rights. Specifically, the
court reasoned that Fowler failed to allege that he was subjected
to any violence or attacks as a result of the housing transfer
and that he failed to support his "conclusory" claim regarding
Captain Ellis's motive. Accordingly, the court dismissed this
claim with prejudice.
Prison officials have a duty under the Eighth Amendment to
protect inmates from violence at the hands of other prisoners.
Farmer v. Brennan, 114 S. Ct. 1970, 1976 (1994). To constitute
an Eighth Amendment violation, "the inmate must show that he is
incarcerated under conditions posing a substantial risk of
serious harm" and that the prison official's state of mind was
one of "deliberate indifference" to the inmate's health or
safety. Id. at 1977. A prison official is deliberately
indifferent if he is both "aware of the facts from which the
inference could be drawn that a substantial risk of harm exists"
and he draws the inference. Id. at 1979. Whether a prison
official had the requisite knowledge of the substantial risk is a
question of fact subject to demonstration by circumstantial
evidence. Id. at 1981.
Fowler alleged in his complaint that Captain Ellis told him
that he was going to be moved from his cell to the dormitory in
order to make it appear that he was being rewarded for
"snitching." This allegation is not conclusory. He also alleged
11 that Captain Ellis drew an inference that a substantial risk of
harm existed in being labelled a "snitch." As evidence of this
risk, Fowler has submitted affidavits from other prisoners
stating that Fowler's housing transfer after the incident with
English was an indication that Fowler had "snitched" and that
there was a "hit" on Fowler among the prison population. The
fact that other prisoners did not actually attack Fowler does not
defeat the claim because a prisoner subjected to a substantial
risk of harm is not required to suffer physical injury before
obtaining court-ordered correction. See Farmer, 114 S. Ct. at
1983. Given these allegations, we cannot say that Fowler's claim
is "indisputably meritless" or "wholly incredible" such that it
lacks an arguable basis in law or fact. Accordingly, we conclude
that the district court abused its discretion in dismissing
Fowler's housing transfer claim under § 1915(d).
C. Work Reassignment
Fowler also argues that the district court erred in
dismissing as frivolous his claim that his work reassignment to
the hoe squad constituted cruel and unusual punishment in
violation of the Eighth Amendment. Specifically, Fowler contends
that the assignment inflicted unnecessary suffering because of
his physical handicap. Fowler further contends that the fact
that he was returned to his original work assignment shortly
thereafter is irrelevant because he could be placed on the hoe
squad in the future. The defendants counter that the return of
12 Fowler to his original assignment is fatal to his Eighth
Amendment claim.
Prison work requirements that compel inmates to perform
physical labor that is beyond their strength, endangers their
lives, or causes undue pain may constitute cruel and unusual
punishment. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983). Work which is not cruel and unusual per se may
nevertheless violate the Eighth Amendment if prison officials are
aware it will significantly aggravate a prisoner's serious
medical condition. Jackson v. Cain, 864 F.2d 1235, 1246 (5th
Cir. 1989). In addition to the awareness requirement, the
prisoner must also establish that the prison officials
disregarded the risk to the prisoner "by failing to take
reasonable measures to abate it." Farmer, 114 S. Ct. at 1984.
The allegations in Fowler's original complaint suggest, at
most, that he was assigned to the hoe squad in an effort to
humiliate and embarrass him. Fowler did not allege in his
district court pleadings that the hoe squad assignment caused him
unnecessary pain, and he is therefore foreclosed from raising
this argument for the first time on appeal. Walker v. Navarro
County Jail, 4 F.3d 410, 413 (5th Cir. 1993). Further, Fowler
does not allege that a prison official was aware that the
assignment would significantly aggravate his medical condition.
At any rate, when Fowler brought his medical condition to the
attention of Warden Gant after the assignment was made, he was
returned to his original laundry room assignment within two
13 weeks. Thus, we conclude that the district court did not abuse
its discretion by dismissing Fowler's work reassignment claim as
frivolous.
D. Spears Hearing
Finally, Fowler argues that the dismissal of his action
without a Spears4 hearing or a more definite statement was in
error. The purpose of a Spears hearing is "to supplement the
questionnaires sent to prisoners to elaborate on often less than
artfully-drafted pleadings." Wilson v. Barrientos, 926 F.2d 480,
482 (5th Cir. 1991). Given that Fowler submitted a detailed
response to the defendants' motion for summary judgment, we
conclude that a Spears hearing was neither required nor
necessary.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court's
order granting summary judgment to the defendants on Fowler's due
process claim and dismissing as frivolous Fowler's Eighth
Amendment claim involving his work reassignment; however, we
VACATE that part of the district court's order dismissing
Fowler's Eighth Amendment claim involving his housing transfer
and REMAND for further proceedings consistent with this opinion.
4 Spears v. McCotter, 766 F.2d 179, 181 (5th Cir. 1985).