Johnson v. Johnson

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-41086 Summary Calendar

KENNETH MARSHALL JOHNSON,

Plaintiff-Appellant,

versus

GARY JOHNSON, Warden; THOMAS PRASIFKA, Warden; ERNEST GARCIA, Captain; Correctional Officer III #371072; NOWARD BELL; JOSEPH RANDOLPH, Lieutenant, TDCJ-ID; KATHI S. CHAMBERLAIN, Librarian II, TDCJ-ID,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. V-99-CV-2 - - - - - - - - - - July 18, 2002

Before DAVIS, BENAVIDES, and CLEMENT, Circuit Judges

PER CURIAM:*

Kenneth Marshall Johnson, Texas prisoner #688601, appeals the

district court’s dismissal of his civil rights suit as frivolous.

42 U.S.C. § 1983; 28 U.S.C. § 1915A. Johnson has failed to

demonstrate that prison officials knew that his assigned work,

pulling weeds and sacking them, would aggravate his back or carpal

tunnel conditions. See Jackson v. Cain, 864 F.2d 1235, 1245-46

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-41086 -2-

(5th Cir. 1989). The time restriction of four hours of work was

not violated, and Dr. Adams testified that the work of which

Johnson complains was consistent with the restrictions occasioned

by his back problems. The district court did not abuse its

discretion in dismissing Johnson’s claim that his work assignment

was violative of the restrictions occasioned by his back condition.

Johnson argues that this case should be remanded because no

evidence was presented at the Spears hearing regarding his work

restriction against the repetitive use of hands. Although there

was no direct evidence presented upon this work restriction, Dr.

Adams summarized Plaintiff’s work restrictions and testified that

pulling weeds would not violate his work restrictions. We may

assume that Dr. Adams was familiar with Plaintiff’s work

restrictions and that he did not think that the restriction against

the repetitive use of hands was relevant to pulling weeds. We

accordingly find that the district court did not abuse its

discretion in dismissing Johnson’s claim that his work assignment

was violative of the restrictions occasioned by his carpal tunnel

condition.

Johnson’s arguments that it was improper for the court to use

prison records to counter his testimony, and that its focus on his

credibility rather than on the plausibility of his claim was

somehow erroneous, are frivolous. The court did not use medical

records to refute Johnson’s testimony. It relied on the testimony

of Dr. Adams, who related Johnson’s medical conditions and work No. 01-41086 -3-

restrictions. The court’s credibility determination was

sufficiently limited in that it went on to detail the objective

reasons for its dismissal of Johnson’s retaliation claim. See

Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir. 1997). Johnson is

not entitled to relief on this claim.

Johnson’s argument that the court never reached a conclusion

on his retaliation claims is frivolous. The district court

specifically addressed his retaliation claims.

The district court did not abuse its discretion in dismissing

Johnson’s claim that his work assignment violated his work

restrictions. The dismissal of that claim is hereby AFFIRMED. See

Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997); 28 U.S.C.

§ 1915A.

AFFIRMED.