Locke v. Terry

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-21060

Summary Calendar

DANA NEIL LOCKE, Plaintiff-Appellant,

H RAY TERRY et al., versus Defendant-Appellee.

Appeal from the United States District Court For the Southern District of Texas CA-H-94-199

June 17, 1996

Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges. PER CURIAM:*

This is a prisoner’s suit under 42 U.S.C. s 1983. The

district court dismissed the case as frivolous after a Spears

hearing. We affirm.

Plaintiff Locke is former cabaret security guard. In the

course of his employment, he arrested unruly patrons on a regular

basis. He alleges that his former employment places him in danger

of attack from other inmates.

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. According to his complaint, Locke was assaulted while in

Dallas County Jail because of his former employment. He was

subsequently moved into the TDCJ-ID. Initially, he was classified

and released into general population, despite his repeated requests

for placement in adseg for his protection. After two or three

reclassification hearings, each of which resulted in placement in

general population, he suffered a nervous breakdown and attempted

suicide on several occasions. Eventually, he was reclassified into

the Safekeeping Program. The Safekeeping Program is for inmates

who for some reason, such as sexual orientation or lack of physical

strength, are unable to be housed safely in general population.

Since then, plaintiff alleges that his fear of coming into

contact with other inmates who might recognize him, recall or

discover the nature of his former employment, and assault him is so

great that he has refused to work in any capacity that requires him

to interact with other prisoners. Because he refuses to work,

prison officials as punishment have kept him in his cell almost 24

hours per day, allowing him to leave only once a day to shower. In

addition, Locke’s refusal to work prevents him from accruing good

time credits, being eligible for parole, and enjoying privileges of

any kind.

Locke sought damages and an injunction requiring officials to

place him in adseg and allow him to work, accrue good time credits,

be eligible for parole, and enjoy privileges. Before this court,

he seeks a reversal of the 1215(d) dismissal below on the merits

2 and on the ground that the district court denied him due process by

failing to allow him to call witnesses on his own behalf or to

cross-examine the defendants’ witnesses.

We affirm. Locke concedes that Farmer v. Brennan, 114 S. Ct.

1970 (1994), requires him to show that the defendants’ actions were

taken with subjective deliberate indifference. Even if Locke

proved the allegations in his complaint, no reasonable finder of

fact could conclude that the defendants have acted with subjective

deliberate indifference. The defendants have held at least three

hearings on his prison classification, illustrating that they are

aware of Locke’s difficulties and are taking some action. Locke

wholly fails to explain why the Safekeeping Program is inadequate

to protect him from the risk of harm from other inmates. This

failure is telling, given that the very purpose of the Safekeeping

Program is to protect those inmates that are for some reason in

danger of assault in general population. No rational trier of fact

could conclude that the response of placing him in Safekeeping,

even if negligent, illustrates a deliberately indifferent state of

mind.

Locke’s other claims fail as well. He has no constitutional

right to an opportunity to accrue good time credits, become

eligible for parole, or enjoy privileges. His procedural due

process claim fails because he did not object below or request the

opportunity to cross-examine defendants’ “witness.”

AFFIRMED.