Thompson v. Scott

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 8, 1999
• Docket: 98-40724
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-40724 Summary Calendar

ARTHUR J. THOMPSON, JR.,

Plaintiff-Appellant,

VERSUS

WAYNE SCOTT, Director, Texas Department of Criminal Justice, Institutional Division; DAN MORALES, Attorney General; TIMOTHY WEST, Warden; JACK MANGRUM, Captain; KEITH GORSUCH; JOHN ALLEN, Lieutenant; BILLYE FORREST, Lieutenant; BRYAN SEWELL, Correctional Officer; JOHN DOE, Correctional Officer; JANE DOE, Correctional Officer; JOHN DOE, Director of Health Administration,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Texas (1:95-CV-1024) - - - - - - - - - - June 4, 1999

Before JOLLY, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

Arthur Thompson, Jr., a state prisoner, appeals an order

dismissing his civil rights action as frivolous pursuant to

28 U.S.C. § 1915(e)(2)(B)(i). We dismiss the appeal as frivolous.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Under 28 U.S.C. § 1915(e)(2)(B)(i), a prisoner’s civil rights

action may be dismissed as frivolous if it has no arguable basis in

law or in fact. Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir.

1997); see Denton v. Hernandez, 504 U.S. 25, 32-33 (1992). We

review for abuse of discretion. Siglar, 112 F.3d at 193. Thompson

challenges the dismissals of his excessive force, denial of access

to the courts, denial of medical care, inadequate diet, and free

exercise claims. Each claim is insufficient.

Regarding his excessive force claim, Thompson must “establish

that force was not 'applied in a good-faith effort to maintain or

restore discipline, [but] maliciously and sadistically to cause

harm,' and that he suffered an injury.” Eason v. Holt,

73 F.3d 600, 601-02 (5th Cir. 1996) (quoting Hudson v. McMillian,

503 U.S. 1, 7 (1992) (alteration in original)). Thompson’s factual

allegations fail to establish this, but rather reflect that minimal

force was used in an effort to restore order. The district court

did not, therefore, abuse its discretion in dismissing this claim

as legally frivolous.

Regarding his denial-of-access-to-the-courts claim, Thompson

has failed to indicate how he was prejudiced by the confiscation of

his legal papers. See Henthorn v. Swinson, 955 F.2d 351, 354 (5th

Cir. 1992). Regarding his assertions of denial of medical care and

inadequate diet, Thompson does not provide any argument in support

of this issue and does not identify the purportedly unresolved

factual issue(s). Accordingly, he has failed to show that the

district court abused its discretion in dismissing this claim as

2 frivolous.

Regarding his free exercise claim, Thompson contends that he

was ordered to stop his “fasting prayer,” in violation of the First

Amendment. Although reasonable opportunities must be afforded to

prisoners to exercise the religious freedom guaranteed by the First

and Fourteenth Amendments, Pedraza v. Meyer, 919 F.2d 317, 320 (5th

Cir. 1990), Thompson’s conclusional argument fails to demonstrate

either that a practice of his religion was infringed upon, or that

any such infringement was unreasonable.

The preceding demonstrates that the district court did not

abuse its discretion in dismissing the complaint as frivolous.

Because this appeal is also frivolous, it too is DISMISSED. See

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

5TH CIR. R. 42.2. Because Thompson has already been warned that the

filing of a frivolous appeal would invite the imposition of a

sanction, see Thompson v. Morales, No. 98-40723 (5th Cir. Feb. 19,

1999), we accordingly BAR Thompson from filing any future pro se

pleading or appeal in any court subject to our jurisdiction without

the advance written permission of a judge of the forum court. The

clerk of this court and the clerks of all federal district courts

in this circuit are DIRECTED to return to Thompson, unfiled, any

attempted submission inconsistent with this bar. To obtain such

permission, Thompson must send a letter, requesting such permission

and attaching copies of the proposed filing and this order to the

clerk of this court.

APPEAL DISMISSED; SANCTION IMPOSED.