Hudson v. Lamartiniere

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 17, 1999
• Docket: 98-31356
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-31356 Conference Calendar

LOUIS G. HUDSON,

Plaintiff-Appellant,

versus

WESLEY LAMARTINIERE,

Defendant-Appellee.

- - - - - - - - - - Appeal from the United States District Court for the Middle District of Louisiana USDC No. 98-CV-521 - - - - - - - - - -

June 17, 1999

Before EMILIO M. GARZA, BENAVIDES, and PARKER, Circuit Judges.

PER CURIAM:*

Louis G. Hudson, Louisiana inmate # 294158, proceeding pro

se and in forma pauperis (IFP), appeals the district court’s

dismissal of his civil rights complaint pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(i) and (ii) as frivolous and for failure to state

a claim upon which relief could be granted. We review the

dismissal of a prisoner’s IFP complaint as frivolous for an abuse

of discretion. Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir.

1997). We review the district court’s dismissal of a prisoner’s

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 98-31356 -2-

IFP complaint for failure to state a claim under the de novo

standard that is used to review a dismissal pursuant to Fed.

R. CIV. P. 12(b)(6). Black v. Warren, 134 F.3d 732, 734 (5th

Cir. 1998).

Hudson contends that the district court erred by dismissing

his complaint without effecting service of process and without

notifying Hudson that it had ordered service on the defendant.

The Prison Litigation Reform Act (PLRA) amended § 1915 to require

the district court to dismiss a prisoner’s IFP civil rights suit

“at any time” if the court determines that the action is

frivolous or malicious, does not state a claim upon which relief

may be granted, or seeks monetary relief from an immune

defendant. § 1915(e)(2)(B).

Hudson contends that the defendant retaliated against him

for signing an inmates’ petition that alleged official

misconduct. Hudson alleged that the defendant verbally

threatened him with retaliatory conduct. Allegations of verbal

threats do not rise to the level of a constitutional violation.

See Bender v. Brumley, 1 F.3d 271, 274 n.4 (5th Cir. 1993)

(pretrial detainee)(allegations of verbal abuse and threats by

prison officials do not state a claim under § 1983).

Hudson contends that his constitutional rights were violated

when his administrative complaint was rejected as untimely. To

obtain relief under § 1983, the plaintiff must demonstrate the

violation of a constitutional right. Allison v. Kyle, 66 F.3d

71, 73 (5th Cir. 1995). Hudson has not asserted an actionable

claim of denial of access to the court. See Henthorn v. Swinson, No. 98-31356 -3-

955 F.2d 351, 354 (5th Cir. 1992) (A claim of denial of access to

the court requires a showing that the claimant’s legal position

was prejudiced by the alleged violation.).

Hudson has not alleged facts showing that he suffered a

constitutional violation. The district court did not abuse its

discretion in dismissing his § 1983 complaint pursuant to

§ 1915(e)(2)(B).

Hudson’s appeal is without arguable merit and is frivolous.

See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).

Because the appeal is frivolous, it is dismissed. See 5th Cir.

R. 42.2.

The dismissal of this appeal as frivolous and the dismissal

in the district court of the complaint as frivolous count as two

separate “strikes” for purposes of 28 U.S.C. § 1915(g). We

caution Hudson that once he accumulates three strikes, he may not

proceed IFP in any civil action or appeal filed while he is

incarcerated or detained in any facility unless he is under

imminent danger of serious physical injury.

DISMISSED AS FRIVOLOUS; WARNING ISSUED.