IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-50917
Summary Calendar
EDWARD S HODGES, III,
Plaintiff - Appellant,
versus
MARGO FRASIER, Sheriff; M SPORNHAUER, #720; JACK E CRUMP,
Director, Texas Jail Commission; J ESTRADA, City Officer;
B BORING, Internal Affairs Officer; D DIAZ, Travis County Jail
Officer; G CONWAY, #788; TOROZON, #1066, Legal Research
Lady; L VALLEJO, #577, Travis County Jail Officer; A SHAW,
Travis County Jail Officer; D T RICHARDS, #102, Travis
County Jail Officer; L DAVENPORT, #757, Travis County Jail
Officer; D BLAIR, #544, Property Officer; RON BENNETT; G
MARTINEZ, Captain; JANA BISBEY THOMAS, also known as Bisbey,
Travis County Jail Class Officer; WHITE, #1112, Travis
County Jail Officer; D SWANSON, Travis County Jail Hospital
Administrator; D KLEKAR, #988; SELLSTROM, Travis County Jail
Class Officer; DOWNINGS; DIAZ, Travis County Jail Officer;
JOHN DOE; TRAVIS COUNTY COMMISSIONER'S COURT; JOHN DOE,
#1291, Travis County Jail Officer,
Defendants - Appellees.
- - - - - - - - - -
Appeal from the United States District Court
for the Western District of Texas
USDC No. A-95-CV-632
- - - - - - - - - -
March 10, 1999
Before JOLLY, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
*
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this opinion should not be published and is not precedent except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.
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Edward S. Hodges, III (#313950), a state prisoner, has
appealed the district court’s judgment dismissing his civil rights
action raising various claims related to his stay at the Travis
County Jail.
Pending motions
Hodges has requested oral argument. Oral argument is DENIED.
See Fed. R. App. P. 34(a)(3).
Hodges has moved for appointment of counsel. The case does
not present exceptional circumstances requiring appointment of
counsel. See Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir.
1982). The motion is DENIED.
Hodges has filed a motion requesting that the appellees be
sanctioned and the he be granted judgment on the merits. The
motion is DENIED as frivolous.
Hodges has moved for leave to file two reply briefs. The
appellees were permitted to file two briefs. The motion is DENIED
AS UNNECESSARY. See Fed. R. App. P. 28(c).
Hodges has moved for leave to supplement the record with
excerpts from the depositions of appellees Torczon, Richards,
Estrada, Bisbey, and appellant, Hodges. The motion is DENIED.
Standards of review
The claims against defendants Crump, Shaw, Martinez, and
Bennett were dismissed as frivolous. An in forma pauperis
complaint may be dismissed as frivolous pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(i) if it has no arguable basis in law or in fact.
Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997); see Denton
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v. Hernandez, 504 U.S. 25, 32-33 (1992). Section 1915(e)(2)(B)(i)
dismissals are reviewed for abuse of discretion. Siglar 112 F.3d
at 193.
The claims against defendants, Sheriff Keel, in his individual
capacity, Swanson, the Travis County Commissioners’ Court, Boring,
White, Spornhauer, Swanson, Conway, D. Diaz, FNU Diaz, Selstrom,
Torczon, Davenport, John Doe, Klekar, and Downings were dismissed
for failure to state a claim. 28 U.S.C. § 1915(e)(2)(B)(ii). Such
a dismissal is ordinarily reviewed by this court under the same de
novo standard as is employed in reviewing dismissals under Fed. R.
Civ. P. 12(b)(6). Black v. Warren, 134 F.3d 732, 733-34 (5th Cir.
1998). In this case, however, Hodges failed to file timely
objections to the magistrate judge’s report and recommendation.
The objections were timely mailed but were returned because of
insufficient postage. In Houston v. Lack, the Court held that a
prisoner’s notice of appeal is considered filed when it is
delivered to prison authorities. See Houston v. Lack, 487 U.S. 266
(1988); Fed. R. App. P. 4(c); see also Cooper v. Brookshire, 70
F.3d 377, 378 (5th Cir. 1995) (extending the “mailbox rule”
established in Houston to statute-of-limitations determinations
involving prisoners’ pro se complaints). Nevertheless, the
“mailbox rule” does not relieve a prisoner from doing all that he
can reasonably do to ensure that the clerk of court receives
documents in a timely manner. Thompson v. Raspberry, 993 F.2d 513,
515 (5th Cir. 1993). Failure to place proper postage on outgoing
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prison mail does not constitute compliance with this standard. Id.
In this circumstance, any issue raised with respect to the
order dismissing Hodges’s claims for failure to state a claim must
be reviewed for plain error only. Douglass v. United Serv. Auto.
Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc). To
demonstrate plain error, an appellant must show clear or obvious
error that affects his substantial rights; if he does, this court
has discretion to correct a forfeited error that seriously affects
the fairness, integrity, or public reputation of judicial
proceedings, but is not required to do so. United States v.
Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc) (citing
United States v. Olano, 507 U.S. 725, 730-35 (1993)).
The claims against Sheriff Keel, in his official capacity, and
against Estrada, Torczon, Richards, and Bisbey, were dismissed by
the district court under Rule 52(c) during the bench trial. See
Fed. R. Civ. P. 52(c). The district court’s fact findings are
reviewed for clear error and its legal conclusions are subject to
de novo review. See Reich v. Lancaster, 55 F.3d 1034, 1045 (5th
Cir. 1995).
Qualified immunity standard
The defendants asserted the defense of qualified immunity. The
first inquiry in examining a defense of qualified immunity is
whether the plaintiff has alleged “the violation of a clearly
established constitutional right.” Siegert v. Gilley, 500 U.S.
226, 231 (1991). The court uses “currently applicable
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constitutional standards to make this assessment.” Rankin v.
Klevenhagen, 5 F.3d 103, 106 (5th Cir. 1993). The second step is
to “decide whether the defendant’s conduct was objectively
reasonable” in light of the legal rules clearly established at the
time of the incident. Spann v. Rainey, 987 F.2d 1110, 1114 (5th
Cir. 1993).
Waived claims
Hodges has waived his claims against defendants Boring,
Conway, Davenport, and Swanson, by failing to assert them on
appeal. See Brinkmann v. Dallas County Deputy Sheriff Abner, 813
F.2d 744, 748 (5th Cir. 1987).
Issues presented on appeal
Procedure in granting Rule 52 motion
Hodges contends that the district court erred by granting the
defendants’ oral motion for judgment as a matter of law before he
rested his case. Hodges contends that he was not permitted to call
certain witnesses. A judge has a great deal of latitude in
conducting a bench trial. Cranberg v. Consumers Union of United
States, Inc., 756 F.2d 382, 391-92 (5th Cir. 1985). Hodges has not
provided the court with a transcript. Without the transcript,
there is no way of reviewing whether the district court abused its
discretion in refusing to permit testimony. No abuse of discretion
has been shown.
Retaliation claims
Hodges’s contends generally that the defendants were motivated
by a desire to retaliate against him. The district court did not
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discuss whether Hodges had stated a retaliation claim. “The
elements of a claim under a retaliation theory are the plaintiff’s
invocation of a ‘specific constitutional right,’ the defendant’s
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.) (quoting Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995)),
cert. denied, 118 S. Ct. 559 (1997). To substantiate a claim of
retaliation, “[t]he inmate must produce direct evidence of
motivation or, the more probable scenario, allege a chronology of
events from which retaliation may plausibly be inferred.” Woods,
60 F.3d at 1166 (internal quotation marks omitted). “The relevant
showing in such cases must be more than the prisoner’s personal
belief that he is the victim of retaliation.” Johnson, 110 F.3d at
310 (internal quotation marks omitted). Although Hodges has
alleged a variety of constitutional claims against a number of jail
employees, Hodges has not alleged a chronology of events from which
a retaliatory motive may plausibly be inferred. Even if we were to
conclude that failure of the district court to address the
retaliation claim constituted clear or obvious error for purposes
of the plain-error standard, we would decline to exercise our
discretion to correct such error in this case. See Calverley, 37
F.3d at 162-64.
Hodges contends specifically that defendants Vallejo,
Spornhauer, Diaz, Bennett, Klekar, Estrada, Martinez, Shaw, Keel,
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and J. Doe, conspired to retaliate against him by falsely charging
him with possession of a controlled substance, by preventing him
from calling witnesses at a prison disciplinary proceeding, and by
failing to act on his grievances. The district court dismissed the
claims against Vallejo, Spornhauer, Diaz, Klekar, Estrada, Keel,
and J. Doe for failure to state a claim under the rule in Heck v.
Humphrey, 512 U.S. 477, 486-87 (1994). Hodges has failed to show
clear and obvious error under the plain-error standard. See
Edwards v. Balisok, 520 U.S. 641, ___, 117 S. Ct. 1584, 1588-89
(1997); Clarke v. Stalder, 154 F.3d 186, 189 (5th Cir. 1998), pet.
for cert. filed (U.S. Nov. 30, 1998) (No. 98-7103).
The district court dismissed the claims against Bennett,
Martinez, and Shaw as frivolous. Bennett was dismissed because he
is a private citizen. Hodges contends that Bennett should not have
been considered a private citizen. A private citizen could be
considered a state actor if he was alleged to have engaged in a
conspiracy with state actors. See Hobbs v. Hawkins, 968 F.2d 471,
479-80 (5th Cir. 1992). Shaw and Martinez were dismissed because
the claims against them involved their supervisory capacities only.
Even if we were to conclude that the district court erred in
dismissing these claims as frivolous, no abuse of discretion
occurred because the substantive retaliation claims were properly
dismissed under the rule in Heck.
Denial of equal protection
Hodges, who is black, contends that his right to equal
protection was violated because prison personnel were motivated to
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act against him by racial animus. In order to make out an Equal
Protection claim, Hodges must prove the existence of purposeful
discrimination, which implies that the decisionmaker selected a
particular course of action at least in part because of the adverse
impact it would have on an identifiable group. Johnson v.
Rodriguez, 110 F.3d 299, 306-07 (5th Cir. 1997). Although Hodges
alleged that defendant White called him a “nigger” and
discriminated against black inmates generally, Hodges has failed to
show that the district court plainly erred in concluding that
Hodges’s allegations were factually insufficient to overcome
White’s qualified-immunity defense. The allegations do not show
the violation of a clearly established constitutional right. See
Siegert, 500 U.S. at 231.
Conditions of confinement
Hodges contends that the district court erred in dismissing
his unsanitary-jail-conditions claims against Sheriffs Keel and
Frasier, in their official capacities, at the bench trial. The
district court held that Hodges had failed to prove any of the
elements of these claims. Because Hodges has not provided the
court with a transcript of the trial, Hodges cannot show that the
district court’s holding was erroneous.
Ineffective assistance of counsel
Hodges contends that his court-appointed attorney rendered
ineffective assistance of counsel at the bench trial in denial of
his right to due process. This issue is frivolous. The attorney’s
alleged malpractice does not provide a basis for reversal because
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the right to effective assistance of counsel is based on the
constitutional right to counsel, and there is no constitutional
right to counsel in a civil rights action. See Strickland v.
Washington, 466 U.S. 668, 686 (1984); Branch v. Cole, 686 F.2d 264,
266 (5th Cir. 1982).
Applicability of three-strikes rule
Hodges contends that he should not be subject to the “three-
strikes provision” of 28 U.S.C. § 1915(g) because he suffers from
an incurable disease. Because the resolution of this issue will
have no consequence for this appeal, we decline to address it. See
Amar v. Whitley, 100 F.3d 22, 23 (5th Cir. 1996) (this court does
not have jurisdiction or judicial resources to render advisory
opinions).
Denial of access to the courts
Hodges contends that he was unable to prepare for a hearing in
a state-court proceeding because defendant Spornhauer was unwilling
to expedite his request for withdrawal of his litigation records
from the Travis County Jail (“TCJ”) property room. The district
court dismissed Hodges’s claims against Spornhauer for failure to
state a claim. Hodges has not alleged that Spornhauer’s inactions
interfered with his ability to assert his constitutional rights in
the state-court proceeding and has not alleged that he was
materially disadvantaged in the state-court action. Henthorn v.
Swinson, 955 F.2d 351, 354 (5th Cir. 1992). Hodges has not shown
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that the district court plainly erred in dismissing the claims
against Spornhauer.
Hodges contends that the TCJ has no law library and does not
provide legal assistance. The district court held at the bench
trial that Hodges had failed to show that he was prejudiced in a
legal proceeding because he did not have access to a law library or
to legal materials. Because Hodges has failed to provide a
transcript of the trial, he cannot show that the district court
erred.
Hodges contends that Sheriff Keel ignored his complaints about
interference with his legal mail by defendants White and Downings.
The district court dismissed these claims for failure to state a
claim, because Hodges had failed to allege specific facts showing
any specific injury. Although it is possible that Hodges could
allege a cause of action respecting the dismissal of his state
civil action, Hodges’s argument is insufficient to show a clear and
obvious error under the plain-error standard.
State-law claims
Hodges contends that the district court erred in dismissing
his state-law conversion claims against defendants Spornhauer,
Keel, Blair, Richards, and Estrada. The district court dismissed
the claims against Spornhauer and Blair for failure to state a
claim under the Parratt/Hudson doctrine. See Hudson v. Palmer, 468
U.S. 517 (1984); & Parratt v. Taylor, 451 U.S. 527 (1981). As to
Spornhauer and Blair, Hodges has not shown clear obvious error
under the plain-error standard. Hodges contends that Richards and
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Estrada damaged and defaced his legal books by removing their
covers and pages. The district court dismissed this claim after
the bench trial, noting that Estrada had testified that the books
had been altered for security reasons, and holding that Hodges had
failed to overcome Richards’s and Estrada’s qualified-immunity
defense. Because Hodges has not provided a transcript of the
trial, Hodges cannot show that the district court erred.
Claims against supervisory personnel
Hodges contends that the district court erred in dismissing
his claims against Sheriff Keel, in his individual and supervisory
capacities, and against the Travis County Commissioners’ Court.
The district court dismissed these claims for failure to state a
claim because Hodges had failed to allege personal involvement and
because the Sheriff and the commission members could not be held
vicariously liable for the actions of their subordinates. “Under
section 1983, supervisory officials are not liable for the actions
of subordinates on any theory of vicarious liability.” Thompkins
v. Belt, 828 F.2d 298, 303 (5th Cir. 1987). A supervisor may be
liable if he is personally involved in the constitutional violation
or there is “a sufficient causal connection between the
supervisor’s wrongful conduct and the constitutional violation.”
Id. at 304. Hodges is unable to show personal involvement in a
constitutional deprivation by these individuals.
Hodges contends that the district court erred in dismissing
these defendants in its order partially granting the motion to
dismiss because the county was subject to suit under § 1983. The
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district court dismissed the claims against the individual
defendants in their individual capacities only. The district court
retained for trial the jail-conditions and HIV-positive-medical-
technicians claims against the county. After the trial, the
district court concluded that Hodges had failed to carry his burden
of showing a constitutional violation as to the retained claims.
Because Hodges has failed to provide a transcript of the trial,
Hodges cannot show that the district court’s dismissal of the
retained claims was in error.
Conditions-of-confinement claims against the county
Hodges contends that he was denied adequate medical care while
confined at TCJ and that the district court erred in dismissing
this claim against the county. This issue was raised for the first
time in Hodges’s untimely objections to the magistrate judge’s
report and recommendation regarding the defendants’ motion to
dismiss. The district court also held, after the bench trial, that
Hodges had failed “to demonstrate that he had suffered injuries of
a constitutional magnitude with respect to his claims regarding
. . . the service of medical care.” Because Hodges has not
provided the court with a transcript of the trial, he cannot show
that the district court erred.
The district court dismissed the denial-of-access-to-the-
courts, denial-of-due-process-at-disciplinary-hearing, and
unsanitary-and-inadequate-food-service claims against the sheriff
in his official capacity for failure to state a claim. For reasons
previously expressed, Hodges cannot show plain error respecting the
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dismissal of the first two claims. As to the unsanitary-and-
inadequate-food-service claims, the district court concluded that
Hodges had failed to allege that the jail food was nutritionally
inadequate. The court also found that the possibility that HIV-
positive inmates were involved in food preparation did not state a
constitutional claim because “AIDS is not transmitted by casual
contact such as food preparation.” Hodges cannot show clear or
obvious error as to these conclusions.
Free exercise of religion
Hodges contends that the district court erred in dismissing
his free-exercise-of-religion claim against defendant Bisbey. The
district court concluded at trial that Bisbey was entitled to
qualified immunity. Hodges argues in his brief that Bisbey was
impeached at trial because her testimony varied from the testimony
she gave in her deposition. The deposition transcripts are not in
evidence, however. Because Hodges has not provided a transcript of
the trial, he cannot show that the district court’s conclusion was
erroneous.
Denial of motion for a new trial
Hodges contends that the district court erred in denying his
motion for a new trial requesting a jury trial. Hodges presents no
argument and, instead, states that he wishes to incorporate by
reference the arguments presented in his motion in the district
court. He may not do so. See Yohey v. Collins, 985 F.2d 222, 225
(5th Cir. 1993) (appellant could not incorporate in his brief his
arguments from other pleadings). No error has been shown.
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Failure to credit testimony
Hodges contends that the district court erred in discrediting
his testimony at trial. Because Hodges has failed to provide a
transcript of the trial, this issue is not reviewable and no error
has been shown.
For the foregoing reasons, the district court’s judgment is
AFFIRMED and all pending motions are DENIED.
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