IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT _______________
No. 96-10688 Summary Calendar _______________
PAUL EDWARD NEAL,
Plaintiff-Appellant,
VERSUS
S.D. WILLIAMS, et al.,
Defendants-Appellees.
_________________________
Appeal from the United States District Court for the Northern District of Texas (CR-H-92-92-2) _________________________
October 29, 1996 Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Paul Neal appeals the dismissal, as frivolous under 28 U.S.C.
§ 1915(d), of his pro se prisoner’s civil rights suit brought
pursuant to 42 U.S.C. § 1983. We affirm in part and vacate and
remand in part.
* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. I.
In the suit, Neal raised numerous complaints regarding his
employment in a shoe factory operated at TDCJ Clements Unit.1 He
named numerous defendants, including the factory manager and the
unit warden. In addition to monetary damages, he sought injunctive
and other prospective relief. The parties consented to proceed
before the magistrate judge, who conducted a hearing pursuant to
Spears v. McCotter, 766 F.2d 2179 (5th Cir. 1985), then dismissed
the suit as frivolous under § 1915(d),2 concluding that none of
Neal’s claims had merit.
II.
Neal argues that the dismissal was in error because the
magistrate judge misconstrued some of his claims and failed to
address others. An in forma pauperis complaint that lacks an
arguable basis in law or fact may be dismissed as frivolous
pursuant to § 1915(d). Eason v. Thaler, 14 F.3d 8, 9 (5th Cir.
1994). We review a § 1915(d) dismissal for abuse of discretion.
Booker v. Koonce, 2 F.3d 114, 115 (5th Cir. 1993).
1 Although Richard McCoy also was listed as a plaintiff and signed the complaint, the magistrate judge determined that McCoy was not a plaintiff when the case was opened and denied a subsequent motion by Neal to consolidate his complaint with a similar one filed by McCoy. The magistrate judge’s action is questioned by Neal as an issue on appeal, and we address it below.
2 Section 804 of the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996), redesignated § 1915(d) as § 1915(e)(2)(B)(i).
2 A.
Neal argues that he is in fear of violence and becoming a
victim of robberies and burglaries because of the shoe factory’s
requirement that inmates work overtime. He argues that, because
inmates must work overtime if the shoe factory’s “quotas” are not
met, some “inmates resort to violence in order to try to convince
others to stop working.” He raises a similar claim with regard to
the fact that he is not paid for his work, asserting that because
the inmates are not paid, they are forced to steal from each other.
Prison officials have a duty under the Eighth Amendment to
protect inmates from violence at the hands of other prisoners.
Farmer v. Brennan, 511 U.S. 825, ___, 114 S. Ct. 1970, 1976 (1994).
But not every injury “by one prisoner at the hands of another . . .
translates into constitutional liability for prison officials
responsible for the victim’s safety.” 114 S. Ct. at 1977. To
prove an Eighth Amendment violation, “the inmate must show that he
is incarcerated under conditions posing a substantial risk of
serious harm,” and the prison official’s state of mind must be one
of “deliberate indifference” to the inmate’s health or safety. Id.
A prison official is deliberately indifferent if he is “aware of
facts from which the inference could be drawn that a substantial
risk of harm exists” and draws that inference. Id. at 1979.
In his complaint, Neal outlined the “threatening situation”
caused by the administration’s overtime and refusal-to-pay
3 policies. He also made a general statement, at the end of his
complaint, that “[w]ith respect to the above claims it is alleged
that all defendants . . . knew or should have known that their
actions would serve to violate the rights and protections of
Plaintiff under law.”
At the Spears hearing, McCoy testified that the defendants
were creating a “dangerous and threatening situation by working us
on weekends or working us overtime.” McCoy averred that he had, as
witnesses, “a couple of guys that got in a[n] altercation and
others that have been threatened.” Id. The magistrate judge asked
McCoy why the inmates would be threatened, and McCoy replied:
Well, if the[y] make a[n] announcement in the shoe factory on Friday that they are going to be required to work Saturday or the[y] will receive disciplinary if they don’t, then a lot of guys really resent that and they get in little groups and . . . . They try to get and convince other guys to go with them, because they know if they need a lot of unity in order to make an impact, to make an impression. So, the guys that don’t want to go along with the group naturally are threatened or they catch them later over in the . . . housing area, or . . . out by the shoe factory dumpster area or something like that. The[y] do a number on them so they will . . . stay . . . with the inmates.
Neal has failed to present facts to suggest that the defen-
dants either knew, or had reason to know, that the overtime and no-
pay policies created a substantial risk to his safety. Other than
the unsupported assertions that the defendants’ policies caused a
threat of violence, Neal presented nothing to suggest that the
defendants were aware of facts from which the inference of
4 potential harm could be drawn, or that they drew such an inference.
Moreover, assuming that plaintiff McCoy’s Spears testimony can
be considered for the purposes of Neal’s appeal, nothing in the
testimony indicates that the defendants were deliberately in-
different to inmate safety. McCoy’s testimony suggests that any
assault on an inmate for his failure to “strike” was made outside
the presence of the defendants. Thus, there is no indication that
the defendants knew or had reason to know that the overtime policy
created a “threatening situation.” Moreover, the connection
between any threat of violence Neal might experience because
inmates steal from one another and the fact that inmates are not
paid for their labor is too attenuated to suggest deliberate
indifference.
B.
Neal also argues that the magistrate judge failed to address
his assertion that solitary confinement is excessive punishment for
refusing to work. Neal does not, however, argue that he has
refused to work or been given solitary confinement. Neal does not
have standing to raise this claim.
C.
Neal argues that the magistrate judge misconstrued his claim
that the conditions at the shoe factory violated OSHA safety
5 regulations, because the thrust of “the complaint was based upon a
violation of protections from cruel and unusual punishment.” He
argues that the magistrate judge’s rejection of his claim based on
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT _______________
No. 96-10688 Summary Calendar _______________
PAUL EDWARD NEAL,
Plaintiff-Appellant,
VERSUS
S.D. WILLIAMS, et al.,
Defendants-Appellees.
_________________________
Appeal from the United States District Court for the Northern District of Texas (CR-H-92-92-2) _________________________
October 29, 1996 Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Paul Neal appeals the dismissal, as frivolous under 28 U.S.C.
§ 1915(d), of his pro se prisoner’s civil rights suit brought
pursuant to 42 U.S.C. § 1983. We affirm in part and vacate and
remand in part.
* 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. I.
In the suit, Neal raised numerous complaints regarding his
employment in a shoe factory operated at TDCJ Clements Unit.1 He
named numerous defendants, including the factory manager and the
unit warden. In addition to monetary damages, he sought injunctive
and other prospective relief. The parties consented to proceed
before the magistrate judge, who conducted a hearing pursuant to
Spears v. McCotter, 766 F.2d 2179 (5th Cir. 1985), then dismissed
the suit as frivolous under § 1915(d),2 concluding that none of
Neal’s claims had merit.
II.
Neal argues that the dismissal was in error because the
magistrate judge misconstrued some of his claims and failed to
address others. An in forma pauperis complaint that lacks an
arguable basis in law or fact may be dismissed as frivolous
pursuant to § 1915(d). Eason v. Thaler, 14 F.3d 8, 9 (5th Cir.
1994). We review a § 1915(d) dismissal for abuse of discretion.
Booker v. Koonce, 2 F.3d 114, 115 (5th Cir. 1993).
1 Although Richard McCoy also was listed as a plaintiff and signed the complaint, the magistrate judge determined that McCoy was not a plaintiff when the case was opened and denied a subsequent motion by Neal to consolidate his complaint with a similar one filed by McCoy. The magistrate judge’s action is questioned by Neal as an issue on appeal, and we address it below.
2 Section 804 of the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996), redesignated § 1915(d) as § 1915(e)(2)(B)(i).
2 A.
Neal argues that he is in fear of violence and becoming a
victim of robberies and burglaries because of the shoe factory’s
requirement that inmates work overtime. He argues that, because
inmates must work overtime if the shoe factory’s “quotas” are not
met, some “inmates resort to violence in order to try to convince
others to stop working.” He raises a similar claim with regard to
the fact that he is not paid for his work, asserting that because
the inmates are not paid, they are forced to steal from each other.
Prison officials have a duty under the Eighth Amendment to
protect inmates from violence at the hands of other prisoners.
Farmer v. Brennan, 511 U.S. 825, ___, 114 S. Ct. 1970, 1976 (1994).
But not every injury “by one prisoner at the hands of another . . .
translates into constitutional liability for prison officials
responsible for the victim’s safety.” 114 S. Ct. at 1977. To
prove an Eighth Amendment violation, “the inmate must show that he
is incarcerated under conditions posing a substantial risk of
serious harm,” and the prison official’s state of mind must be one
of “deliberate indifference” to the inmate’s health or safety. Id.
A prison official is deliberately indifferent if he is “aware of
facts from which the inference could be drawn that a substantial
risk of harm exists” and draws that inference. Id. at 1979.
In his complaint, Neal outlined the “threatening situation”
caused by the administration’s overtime and refusal-to-pay
3 policies. He also made a general statement, at the end of his
complaint, that “[w]ith respect to the above claims it is alleged
that all defendants . . . knew or should have known that their
actions would serve to violate the rights and protections of
Plaintiff under law.”
At the Spears hearing, McCoy testified that the defendants
were creating a “dangerous and threatening situation by working us
on weekends or working us overtime.” McCoy averred that he had, as
witnesses, “a couple of guys that got in a[n] altercation and
others that have been threatened.” Id. The magistrate judge asked
McCoy why the inmates would be threatened, and McCoy replied:
Well, if the[y] make a[n] announcement in the shoe factory on Friday that they are going to be required to work Saturday or the[y] will receive disciplinary if they don’t, then a lot of guys really resent that and they get in little groups and . . . . They try to get and convince other guys to go with them, because they know if they need a lot of unity in order to make an impact, to make an impression. So, the guys that don’t want to go along with the group naturally are threatened or they catch them later over in the . . . housing area, or . . . out by the shoe factory dumpster area or something like that. The[y] do a number on them so they will . . . stay . . . with the inmates.
Neal has failed to present facts to suggest that the defen-
dants either knew, or had reason to know, that the overtime and no-
pay policies created a substantial risk to his safety. Other than
the unsupported assertions that the defendants’ policies caused a
threat of violence, Neal presented nothing to suggest that the
defendants were aware of facts from which the inference of
4 potential harm could be drawn, or that they drew such an inference.
Moreover, assuming that plaintiff McCoy’s Spears testimony can
be considered for the purposes of Neal’s appeal, nothing in the
testimony indicates that the defendants were deliberately in-
different to inmate safety. McCoy’s testimony suggests that any
assault on an inmate for his failure to “strike” was made outside
the presence of the defendants. Thus, there is no indication that
the defendants knew or had reason to know that the overtime policy
created a “threatening situation.” Moreover, the connection
between any threat of violence Neal might experience because
inmates steal from one another and the fact that inmates are not
paid for their labor is too attenuated to suggest deliberate
indifference.
B.
Neal also argues that the magistrate judge failed to address
his assertion that solitary confinement is excessive punishment for
refusing to work. Neal does not, however, argue that he has
refused to work or been given solitary confinement. Neal does not
have standing to raise this claim.
C.
Neal argues that the magistrate judge misconstrued his claim
that the conditions at the shoe factory violated OSHA safety
5 regulations, because the thrust of “the complaint was based upon a
violation of protections from cruel and unusual punishment.” He
argues that the magistrate judge’s rejection of his claim based on
a determination that OSHA did not create a private right of action
“misses the mark completely.”
The Eighth Amendment prohibits the imposition of prison
conditions that constitute “cruel and unusual punishment.”
Hamilton v. Lyons, 74 F.3d 99, 103 (5th Cir. 1996) (citations
omitted), i.e., the “wanton and unnecessary infliction of pain [or
if they are] grossly disproportionate to the severity of the crime
warranting imprisonment, id. Neal’s allegations challenging the
conditions of confinement are subject to the “deliberate in-
difference” standard. Wilson v. Seiter, 501 U.S. 294, 303 (1991).
Thus, he must establish that the defendants knew that he faced a
substantial risk of serious harm and disregarded that risk by
failing to take reasonable measures to abate it. See Farmer, 511
U.S. at ___, 114 S. Ct. at 1984.
Neal testified that he gets headaches every day that he works
at the factory; McCoy testified that polyvinyl chloride ("PVC"), a
compound used at the factory, is a known carcinogen. The safety
officer at the factory testified that the PVC compound “has been
reported to cause cancer in laboratory animals if they are given it
orally, if they eat it[,]” but argued that such was “the only way
that you are going to be injured by this material.” The safety
6 officer further testified that, although the effects of over-
exposure to PVC vapors can be mildly irritating to some persons,
the problem was controlled by proper ventilation at the factory.
The officer admitted, however, there was a time when the factory
had problems with ventilation because the “Desmas” was producing
excess smoke. Regarding such, McCoy testified that he remembered
the “Desmas” “blowing-up” seven times in one day.
Although the magistrate judge indicated that the plaintiffs’
allegations might require an answer by the defendants, he dismissed
the complaint without addressing the Eighth Amendment claim.
Neal’s exposure to the conditions arguably poses an unreasonable
risk of serious damage to his health, and Neal alleged facts that
could establish deliberate indifference. See Farmer, 511 U.S. at
___, 114 S. Ct. at 1984; Helling v. McKinney, 509 U.S. 25, 33-34
(1993) (exposure to environmental tobacco smoke).
Because Neal’s claim was not factually or legally frivolous,
we vacate and remand for further factual development. We empha-
size, however, that we express no opinion as to what ultimate
decision the court should make; we only require further factual
inquiry, after which the magistrate judge can decide whether there
was deliberate indifference to any condition that existed.
D.
Neal argues that the magistrate judge failed to address his
7 claim that shoe factory workers were discriminated against because
they must work overtime while other inmates do not. Shoe factory
workers apparently must work overtime if they do not make “quota”;
otherwise, they work a regular five-day week.3 The Spears testi-
mony was imprecise as to whether all other prison work groups had
similar quota requirements.
The equal protection clause of the Fourteenth Amendment
essentially is a mandate that all persons similarly situated must
be treated alike. Rolf v. City of San Antonio, 77 F.3d 823, 828
(5th Cir. 1996). Equal protection is assured against all kinds of
invidious state action, even those discriminations that do not
encroach on liberty or property. Johnson v. Pfeiffer, 821 F.2d
1120, 1122 (5th Cir. 1987). In Johnson, the plaintiff claimed that
prison writ writers were denied equal protection because they were
given harsher treatment in parole consideration than was given to
other similarly situated TDCJ inmates. Id. at 1121-22. We
reversed the dismissal of the claim, noting that Johnson’s
allegations raised suggestions of invidious, group-based discrimi-
nation. Id. at 1122-23.
Similarly, Neal’s allegation that the shoe factory workers are
forced to work harder than other similarly situated workers because
3 Neal also argues that the defendants’ use of quotas is a violation of the decree in Ruiz v. Estelle, 679 F.2d 1115 (5th Cir. 1982). Violations of the Ruiz decree, without more, are not cognizable in a § 1983 cause of action. Green v. McKaskle, 788 F.2d 1116, 1122 (5th Cir. 1986). Thus, insofar as Neal raises this argument as a separate claim, it is without merit.
8 they must meet quota demands raises suggestions of invidious,
group-based discrimination. Nothing that is now in the record
provides a rational basis for this allegedly differing treatment.
See Rolf, 77 F.3d at 828 (holding that because neither a suspect
class nor a fundamental right is involved, the “rational basis”
standard of review is appropriate). The magistrate judge erred by
not addressing this claim. Accordingly, we vacate and remand,
again without suggesting what decision should be reached after
factual development.
E.
Neal complains that the magistrate judge severed the complaint
he had intended to file jointly with McCoy. He argues that the
magistrate judge further erred by refusing to “reconsolidate” the
complaints. He also contends that he intended his complaint to be
a class action lawsuit.
The decision whether to sever or consolidate is within the
magistrate judge’s discretion. See Dillard v. Merrill Lynch,
Pierce, Fenner & Smith, Inc., 961 F.2d 1148, 1151 (5th Cir. 1992)
(refusal to consolidate), cert. denied, 506 U.S. 1079 (1993);
Hammons v. Adams, 786 F.2d 1253, 1253 (5th Cir. 1986) (severance).
The magistrate judge’s apparent rationale for severing the cases,
and then denying Neal’s motion to consolidate, was “because of
security in the courtroom and the need for each Plaintiff to
9 represent himself.” Such was not an abuse of discretion. Neal’s
assertion that he intended for his complaint to be a class action
is frivolous, as he did not move for or otherwise request certifi-
cation of a class.
With the exception of his Eighth Amendment and equal protec-
tion claims, none of Neal’s claims has merit.4 Accordingly, we
AFFIRM the dismissal of those claims. See Sojourner T. v. Edwards,
974 F.2d 27, 30 (5th Cir. 1992) (holding that court may affirm
judgment on any basis supported by the record), cert. denied, 113
S. Ct. 1414 (1993). The dismissal of the Eighth Amendment and
equal protection claims is VACATED and REMANDED.
4 A dismissal pursuant to § 1915(d) may be made prior to service on the defendants. See Boyd v. Biggers, 31 F.3d 279, 281 (5th Cir. 1994). Thus, Neal’s assertion that the magistrate judge erred by failing to serve the defendants is without merit.