UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 97-40272
(Summary Calendar)
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FRANK DIGGES,
Plaintiff-Appellant,
versus
A JEFFCOAT; STEVEN W CROSBY; BRIAN HORTON;
JESSE WILLIAMS,
Defendants-Appellees.
Appeal from the United States District Court
For the Eastern District of Texas
(6:95-CV-831)
June 24, 1998
Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Frank Digges, Texas state prisoner #473881, appeals from the
district court’s dismissal of his civil rights claims. Digges’
motion for leave to file his reply brief out of time is GRANTED.
Digges argues that the district court abused its discretion
when, following a hearing conducted pursuant to Spears v. McCotter,
*
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that this opinion should not be published and is not precedent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.
766 F.2d 179 (5th Cir. 1985), it dismissed his claims of 1) false
disciplinary charges; 2) denial of meals; 3) due process violations
during prison disciplinary hearings; 4) harassment; and 5)
conspiracy to retaliate. Digges further argues that the district
court erred when it dismissed his retaliation claims against
Officers Steven W. Crosby and Brian Horton following a hearing
conducted pursuant to Flowers v. Phelps, 956 F.2d 488 (5th Cir.),
modified on other grounds, 964 F.2d 400 (5th Cir. 1992). Digges
additionally contends that the magistrate judge erred in denying
his motion requesting an in camera inspection of tapes of his
disciplinary hearings. He asserts that the magistrate judge erred
in refusing to provide him with a copy of the transcript of the
Flowers hearing. Finally, he argues that the district court erred
in denying his motion for appointment of counsel.
As an initial matter, Digges’ claims seeking damages as a
result of the filing of the purportedly false disciplinary charges
(other than his retaliation claim) and alleging due process
violations during prison disciplinary proceedings call into
question the lawfulness of his punishment by loss of good-time
credits. As he has not demonstrated that he has previously
obtained habeas corpus relief with regard to this punishment, as
required by Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S. Ct.
2364, 2372-73, 129 L. Ed. 2d 383 (1994), these claims cannot now be
presented in a 42 U.S.C. § 1983 action. See Edwards v. Balisock,
__ U.S.__, 117 S. Ct. 1584, 1588-89, 137 L. Ed. 2d 906 (1997).
The district court proper dismissed Digges’ claim for the
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denial of several breakfasts because the isolated denial of meals
is insufficient to support a § 1983 cause of action. See Talib v.
Gilley, 138 F.3d 211, 214 n. 3 (5th Cir. 1998).
We also find that the district court properly dismissed
Digges’ claim that the officers verbally harassed him and shone a
flashlight into his cell. As a matter of law, verbal harassment,
without more, cannot amount to a constitutional violation. See
Bender v. Brumley, 1 F.3d 271, 274 n. 4 (5th Cir. 1993); McFadden
v. Lucas, 713 F.2d 143, 146 (5th Cir. 1983) (“[M]ere threatening
language and gestures of a custodial officer do not, even if true,
amount to constitutional violations.”). Even combined with the
shining of a flashlight, the verbal harassment is still
insufficient to state an arguable constitutional claim under
§ 1983.
Moreover, the district court did not abuse its discretion in
dismissing Digges’ claim that Officers Horton and Crosby harbored
a retaliatory motive in filing disciplinary charges against Digges.
Digges failed to establish that but for the retaliatory motive, the
complained of acts would not have occurred. See Woods v. Smith, 60
F.3d 1161, 1165 (5th Cir. 1995).
Finally, Digges has not shown error in the court’s denial of
his motions to review a copy of the transcript of the Flowers
hearing or to conduct an in camera inspection of the disciplinary
hearing tapes. See Cranberg v. Consumers Union of United States,
Inc., 756 F.2d 382, 392 (5th Cir. 1985). Digges also has not
demonstrated that the court abused its discretion in denying his
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motions for appointment of counsel in the trial court and on
appeal. See Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir.
1982).
AFFIRMED.
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