Robinson v. Luker

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 13, 1999
• Docket: 98-40698
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_______________

NO. 98-40698 USDC NO. 6:97-CV-452 _______________

ALLEN TYRONE ROBINSON,

Plaintiff-Appellant,

VERSUS

D LUKER, Lieutenant, Powledge Unit Individually and in Official Capacity; T MOORE, Lieutenant, Powledge Unit Individually and in Official Capacity; J JACKSON, Correctional Officer Powledge Unit Individually and in Official Capacity; P BRANHAM, Correctional Officer Powledge Unit Individually and in Official Capacity; T BUTLER, Correctional Officer Powledge Unit Individually and in Official Capacity,

Defendants-Appellees.

--------------- Appeal from the United States District Court for the Eastern District of Texas --------------- October 12, 1999

Before JOLLY and SMITH, Circuit Judges, and SARAH S. VANCE,* District Judge.

PER CURIAM:**

Allen Tyrone Robinson appeals the dismissal of his civil

rights complaint as frivolous. We affirm.

* District Judge of the Eastern District of Louisiana, sitting by designation. ** Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

1 Robinson alleged in his complaint that Correctional Officers

J. Jackson, P. Branham and Lieutenant T. Moore violated prison

rules by disclosing that he had filed a grievance against Officer

Jackson and another inmate. He further alleged that Jackson,

Lieutenant D. Luker and Officer T. Butler retaliated against him

for filing the grievance against Jackson by filing two false

disciplinary charges against him. Specifically, he alleges that on

January 12, 1997, Lieutenant Luker told him that he was ordering

Officer Jackson to file a charge against Robinson for sexual

misconduct. Robinson claims the charge was false and made in

retaliation for his complaint against Jackson. Robinson alleges

that three months later Officer Butler filed a false charge against

him for being out of place, which he claims was also in retaliation

for the charge he filed against Jackson. Robinson suffered no

punishment on either disciplinary charge. After he filed the

grievance against Jackson, Robinson filed three more grievances

between January 12 and March 6, 1997, each of which he appealed to

the Regional Director.

On May 15, 1997, Robinson filed this pro se, in forma pauperis

civil rights action against defendants Luker, Jackson, Branham,

Butler and Moore under 42 U.S.C. § 1983. On recommendation of the

Magistrate Judge, the district court dismissed Robinson's complaint

as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and for

failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii). The

district court found that 42 U.S.C. § 1997(e) mandated dismissal

because Robinson failed to allege any physical injury.

2 We review a dismissal under § 1915(e)(2)(B)(i) for abuse of

discretion. See Harper v. Showers, 174 F.3d 716, 718 (5th Cir.

1999); Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997). A

prisoner's in forma pauperis complaint may be dismissed as

frivolous if it lacks an arguable basis in law or fact. Harper,

174 F.3d at 718. In making the "frivolous" determination, a court

is not bound to accept without question the truth of the

plaintiff's allegations. Denton v. Hernandez, 504 U.S. 25, 32

(1992). However, the § 1915(e) "frivolous" determination cannot

serve as a factfinding process for the resolution of disputed

facts. Id. When the district court dismisses a prisoner's in

forma pauperis complaint for failure to state a claim under

§ 1915(e)(2)(B)(ii), on the other hand, we review its determination

de novo. Black v. Warren, 134 F.3d 732, 733-34 (5th Cir. 1998).

The district court was incorrect in dismissing Robinson's case

under 42 U.S.C. § 1997(e) because § 1997(e) prohibits only the

recovery of damages for mental or emotional harm absent a physical

injury. Harper, 174 F.3d at 719. Here, Robinson seeks both

declaratory and injunctive relief in addition to damages. However,

we can affirm the district court's ruling on any basis supported by

the record. Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998).

Robinson claims that a handbook issued by the Texas Department

of Criminal Justice provides that grievances are to be kept

confidential. He claims that the handbook created a

constitutionally protected "liberty interest" in the

confidentiality of the prison's grievance procedures. In Sandin v.

3 Connor, 515 U.S. 472, 483-84 (1995), the United States Supreme

Court held that prison regulations generally do not implicate

constitutionally protected liberty interests unless they involve

freedom from restraint which "imposes atypical and significant

hardship on the inmate in relation to the ordinary incidents of

prison life." After Sandin, we stated in Orellana v. Kyle, 65 F.3d

29, 32 (5th Cir. 1995), that apart from creating a liberty interest

in good time credits or parole release, "it is difficult to see

that any other deprivations, . . . short of those that clearly

impinge on the duration of confinement, will henceforth qualify for

constitutional liberty status." Robinson has not alleged that

violation of the confidentiality provision caused him any atypical

and significant hardship in relation to the ordinary incidents of

prison life within the meaning of Sandin. Accordingly, his

confidentiality claim is frivolous.

Robinson also alleges that he was retaliated against for

filing a grievance against defendant Jackson when Luker, Jackson

and Butler conspired to file false disciplinary charges against

him. The elements of a retaliation claim are the "invocation of 'a

specific constitutional right,' the defendants' intent to retaliate

against the plaintiff for his or her exercise of that right, a

retaliatory adverse act, and causation, i.e., 'but for the

retaliatory motive the complained of incident . . . would not have

occurred.'" Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir.

1997), cert. denied, -- U.S. --, 118 S. Ct. 559, 139 L.Ed.2d 400

(1997) (quoting Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995))

4 (emphasis added). Even assuming that Robinson invoked a specific

constitutional right by filing a prison grievance, his claim fails

because he has not asserted a retaliatory adverse act against him.

Robinson suffered no punishment on either disciplinary complaint.

Further, he does not claim that the alleged retaliation had a

chilling effect on his filing of grievances; indeed, he filed three

more grievances between January 12 and March 6, 1997 after his

initial grievance against Jackson. Not all threats or deprivations

in the prison setting give rise to a constitutional violation. See

Thaddeus-X v. Blatter, 175 F.3d 378, 398 (6th Cir. 1999); Gibbs v.

King, 779 F.2d 1040, 1046 (5th Cir. 1986) (incident involving minor

sanction not sufficient to show retaliatory harassment). Robinson

simply has not alleged the type of adverse action that rises to the

level of retaliation. Accordingly, his retaliation claim was

properly dismissed as frivolous.

AFFIRMED.