IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-21035
Summary Calendar
_____________________
RANDLE COOKE,
Plaintiff-Appellant,
versus
TAMMY NEALY,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court for the
Southern District of Texas
USDC No. H-96-CV-3361
_________________________________________________________________
December 16, 1998
Before JOLLY, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
I
Randle Cooke, Texas state prisoner # 578761, proceeding pro se
and in forma pauperis (IFP), filed a civil rights complaint against
Tammy Nealy, a correctional officer at the Jester III Unit of the
Texas Department of Criminal Justice-Institutional Division
(TDCJ-ID), alleging claims of retaliation, denial of access to
courts, verbal abuse, and denial of his constitutional right of
freedom of association. Cooke also filed a more definite statement
*
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this opinion should not be published and is not precedent except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.
of facts. Cooke alleged that on September 21, 1996, Officer Nealy
conducted a search or “shakedown” of his cell and ordered that he
be subjected to a strip search by Officer Kevin Ray. He alleged
that the search was conducted in retaliation for his having filed
a grievance against Nealy. During the search of his cell, Nealy
allegedly confiscated various legal materials and damaged his word
processor. As a result of the confiscation of his legal materials,
including notes, affidavits, and complaints, he was prevented from
filing complaints in either case, one against Nealy alleging due
process violations and another against other defendants, including
a physician, alleging an Eighth Amendment violation.
Nealy is alleged to have subjected him to profane, derogatory,
and racially discriminatory comments. He alleged that while she
searched his cell on September 21, 1996, she referred to the
grievance he had filed against her and stated, among other things,
that she “was going to fix [him].” Nealy told other inmates not to
associate with him in violation of his right to freedom of
association. Nealy told him several times that because he was a
“snitch,” she was going to “get” him. On September 21, 1996, Nealy
stated that his complaints would never make it to court and that
she would get him “locked up” and would “tear [his] house up every
chance [she] [got].”
2
Nealy filed an answer to the complaint, arguing, among other
things, that Cooke had failed to state a claim upon which relief
could be granted. Cooke filed a motion to amend his original
complaint, requesting that in the light of Nealy’s purported
intentional damage to his word processor, that she be required to
repair it.
Nealy filed a motion for summary judgment. Cooke responded,
submitting in support statements from other inmates in which the
inmates averred, among other things, that the they observed Nealy
remove legal papers from Cooke’s “legal box”; that the inmates
heard Nealy make racial slurs and threats against Cooke, stating
that she would get back at him for filing something on her; that
the inmates saw Nealy kick Cooke’s typewriter; and that Nealy had
a reputation for disliking white inmates.
The district court conducted a Spears1 hearing and, for the
reasons stated orally at that hearing, dismissed Cooke’s claims
with prejudice under 28 U.S.C. § 1915(e)(2) for failure to state a
claim and as frivolous. At the Spears hearing, Cooke testified
that searches of inmates’ cells were fairly routine. Supp. R.,
2-3. Before September 21, 1996, he had never been subjected to
strip search. Id. at 3. On January 20, 1997, he again was
1
Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
3
subjected to another strip search; Nealy was involved in this
second strip search also. Id.
He testified that during the search of his cell, his original
complaint in a 42 U.S.C. § 1981 racial discrimination suit against
Nealy was confiscated as well as staff and inmate affidavits. He
was unable to commence the lawsuit because many of the affiants had
left the unit. He testified that the legal materials from a § 1983
deliberate indifference suit he planned to file against Dr. Largen
and Warden Decker also were confiscated. The materials included
“I-60's,” responses, and § 1983 forms. He had no lawsuits pending
at the time of the September 21, 1996 search and had filed no
lawsuits, other than this one, since the search.
During the search, Nealy kicked his word processor, causing
the letter “C” to stop working.
Cooke acknowledged that following the search he received a
reprimand for having more than the authorized amount of bed linens,
an extra towel, in his cell. He received five days’ commissary
restriction for the infraction.
Cooke had not previously filed a lawsuit against Nealy but on
May 8, 1996, he filed a grievance against her for making racial
slurs against him. Cooke testified that he overheard Nealy order
Officer Kevin Ray to conduct the strip search.
4
Major Tedford of the TDCJ testified that TDCJ procedures allow
for random searches, including strip searches. David Handorf, the
grievance supervisor in the region, testified that he had reviewed
Cooke’s grievance regarding the incident and the response to that
grievance. The response indicated that after Nealy observed Cooke
and another inmate making an exchange, the supervisor was called
and a strip search conducted. Nealy denied using profanity toward
Cooke or making any statements concerning his previous grievances.
She reported that she did not confiscate his legal papers or kick
his word processor. Cooke’s grievance indicated that some of his
legal papers were confiscated, but the warden’s response indicated
that the officers and staff did not confiscate any legal papers.
After hearing the testimony, the court determined that Cooke’s
retaliation claim rested on a speculative connection between his
May 1996 grievance against Nealy and the September 1996 search.
The court noted that Nealy did not conduct the strip search and
that the search of Cooke’s cell was a routine matter. The court
observed that Cooke conceded that he had more bed linens than
authorized and that Cooke’s failure to dispute his guilt on the
disciplinary charge further eroded his retaliation claim. The
court stated that Cooke had not shown that his right of access to
courts had been hindered in a constitutionally significant manner
or that he was without recourse as to his personal property losses.
5
The court stated that even assuming Cooke’s allegations of verbal
abuse were true, an inmate had no constitutional right to be free
from verbal abuse.
Cooke filed a timely notice of appeal. Cooke has paid the
appellate filing fee.
II
A
Cooke argues that the district court erred in dismissing his
claims as frivolous and for failure to state a claim. This court
reviews a dismissal under § 1915(e)(2)(B)(ii) de novo, applying the
same standard used to review a dismissal pursuant to Fed. R. Civ.
P. 12(b)(6). Black v. Warren, 134 F.3d 732, 734 (5th Cir. 1998).
We accept as true all the allegations of the plaintiff’s complaint.
Ashe v. Corley, 992 F.2d 540, 544 (5th Cir. 1993). The dismissal
may be upheld only if it appears that no relief could be granted
under any set of facts that could be proven consistent with the
allegations. McGrew v. Texas Bd. of Pardons & Paroles, 47 F.3d
158, 160 (5th Cir. 1995).
Cooke argues that Nealy told him on several occasions that she
was going to retaliate against him. He asserts that he submitted
five affidavits of witnesses who observed Nealy take his legal
pleadings and threaten him with retaliation. Cooke argues that the
district court’s determination that his retaliation claim rested on
6
a speculative connection between events widely separated in time is
contradicted by the evidence that included the affidavits.
He argues that Nealy ordered Ray to conduct the strip search
and that she was present and observed the search. He contends that
although Nealy did not conduct the strip search, did not
“physically put her hands on [him],” she participated in it. He
argues that the search of his cell was not routine because during
a routine search, officers do not go through the contents of the
inmates’ locker and “legal box.” He contests the district court’s
conclusion that he was not without recourse as to his personal
property losses, citing the testimony of Tedford that suggested
that it would be difficult to fix Cooke’s word processor.
Cooke also argues that the two witnesses who testified for
Nealy at the Spears hearing were not Jester Unit employees and
lacked first-hand knowledge of the incident.
Although, as the district court noted, months separated
Cooke’s filing the grievance against Nealy and the search of
Cooke’s cell and strip search, Cooke offered direct evidence of a
retaliatory motive through his own testimony and the statements of
other inmates. Although it is undisputed that searches in the
prison were “routine,” Cooke’s allegations suggested that the
search of September 21 was not one of these routine searches.
Cooke alleged that Nealy directly indicated that she was conducting
7
the search in retaliation for his filing a grievance against her;
that legal materials were confiscated during the search; and that
Nealy kicked his word processor during the search. These
allegations are supported by the statements of other inmates.
Cooke stated a valid nonfrivolous retaliation claim. The district
court’s dismissal of Cooke’s claim thus is VACATED as to this claim
and the case is REMANDED for further proceedings.
B
Cooke argues that the district court erred in dismissing his
denial of access to courts claim. He argues that during the search
of his cell, Nealy confiscated his legal materials, preventing him
from pursuing two civil rights actions.
Prisoners have a constitutionally protected right of access to
the courts. Bounds v. Smith, 430 U.S. 817, 821 (1977). A prisoner
must show an actual injury to prevail on a denial of access to
courts claim. Lewis v. Casey, 518 U.S. 343, 349-51 (1996). “While
the precise contours of a prisoner’s right of access to the courts
remain somewhat obscure, the Supreme Court has not extended this
right to encompass more than the ability of an inmate to prepare
and transmit a necessary legal document to a court.” Brewer v.
Wilkinson, 3 F.3d 816, 821 (5th Cir. 1993) (footnote omitted).
The district court, in dismissing this claim, stated only that
Cooke had not shown that his right of access to courts had been
8
hindered in a constitutionally significant manner. In the district
court, however, Cooke alleged that during the search of his cell,
Nealy confiscated various documents pertaining to § 1981 and § 1983
civil rights lawsuits he was preparing; this allegation was
supported by the statements of other inmates. Cooke alleged that
as a result of the confiscation of the legal materials, he was
unable to file a complaint. He alleged that some of the
confiscated documents included affidavits of persons no longer
available to provide statements on his behalf. Cooke has stated a
nonfrivolous denial of access to courts claim. Therefore, the
district court erred in dismissing this claim as well, and the
judgment as to this claim also is VACATED and REMANDED.
C
On appeal, Cooke mentions that he alleged in the district
court that Nealy violated his constitutional right of freedom of
association. Cooke has not adequately briefed this claim, however,
and he wholly has failed to brief the claim addressed by the
district court of Nealy’s purported verbal abuse. Although pro se
briefs are afforded a liberal construction, even pro se litigants
must brief arguments in order to preserve them. Yohey v. Collins,
985 F.2d 222, 224-25 (5th Cir. 1993). "A party who inadequately
briefs an issue is considered to have abandoned the claim." Green
v. State Bar of Texas, 27 F.3d 1083, 1089 (5th Cir. 1994). Cooke
9
has abandoned these two issues by failing to brief them on appeal.2
Thus, the district court’s judgment, to the extent that it
dismissed Cooke’s claim of verbal abuse explicitly and Cooke’s
claim of a denial of his right of freedom of association
implicitly, is AFFIRMED.
III
For the reasons set out above, the judgment of the district
court is
AFFIRMED in part; VACATED in part; and
REMANDED.
2
As the district court reasoned, verbal threats by prison
guards do not amount to a constitutional violation. See Lynch v.
Cannatella, 810 F.2d 1363, 1376 (5th Cir. 1987).
10