IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-50796
Summary Calendar
JORGE MARIO HERRERA,
Plaintiff-Appellant,
versus
LARRY FIELDS et al.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-96-CV-223
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May 24, 1999
Before DAVIS, DUHÉ, and PARKER, Circuit Judges.
PER CURIAM:1
Jorge Mario Herrera, an Oklahoma state prisoner, appeals the
dismissal of his 28 U.S.C. § 1983 civil rights lawsuit for failure
to state a claim. Herrera argues that dismissal was error because
there were disputed issues of fact which precluded it, and he
challenges the district court’s failure to hold an evidentiary
hearing on his claims. His argument is unpersuasive because his
claims were appropriate for dismissal even accepting all of his
factual allegations as true. See 28 U.S.C.
§ 1915(e)(2)(B)(ii).
1
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that this opinion should not be published and is not precedent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.
Herrera renews his claim that he was illegally transferred
from an Oklahoma prison to a facility in San Antonio, Texas,
privately owned and operated by the Wackenhut Corrections
Corporation (“Wackenhut”). As part of this claim, Herrera argues
that the contract between Oklahoma and Wackenhut violates Oklahoma
statutory law.
Herrera’s claim that the transfer itself violated his
constitutional rights is without merit. See Olim v. Wakinekona,
461 U.S. 238, 245-48 (1983); Tighe v. Wall, 100 F.3d 41, 42 (5th
Cir. 1996). His contractual claim also fails because he points to
no constitutional violation arising from his allegation that the
contract between Oklahoma and Wackenhut violates Oklahoma statutory
law; moreover, the claim is facially without merit. See Johnson v.
Dallas Indep. Sch. Dist., 38 F.3d 198, 200 (5th Cir. 1994); see
also 57 Okl. St. Ann. § 561 (West 1998).
To the extent that Herrera’s claim is that the contract
violates Oklahoma law because the Wackenhut facility provides a
substandard law library, substandard housing, or substandard
medical care, Herrera has not provided any specific factual
allegations to explain in what way the library, housing, or medical
care were deficient. His conclusional allegations are of a
contractual, not constitutional, nature and therefore fail under §
1983. See Johnson, 38 F.3d at 200.
Herrera also renews his claim that his transfer was done in
retaliation for his: 1) providing legal assistance to Hispanic
inmates; 2) exercising his right of access to the courts by filing
lawsuits; and 3) complaining about the inadequate law library and
inadequate access thereto. Herrera’s activities of providing legal
assistance to other inmates are not constitutionally protected and
cannot support a retaliation claim. See Tighe, 100 F.3d at 42-43.
Although Herrera’s right of access to the courts is
constitutionally protected, he has provided no specific facts or
chronology of events from which a retaliatory motive could
reasonably be inferred; his claim is based on the conclusional
assertion that he was retaliated against, which is insufficient.
See Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995); see also
Whittington v. Lynaugh, 842 F.2d 818, 821 (5th Cir. 1988).
Herrera additionally renews his claim that he was illegally
removed from his position as legal assistant in the Wackenhut law
library in retaliation for providing assistance to Hispanic inmates
and for complaining on their behalf about the inadequate library
and inadequate access allowed them. This claim fails for the same
reason that his retaliation claim fails. See Tighe, 100 F.3d at
42-43. Herrera’s claim that he was denied access to the courts is
similarly without merit because he has failed to demonstrate any
resulting prejudice. See Lewis v. Casey, 116 S. Ct. 2174, 2179-80
(1996).
Herrera has failed to state a claim under § 1983, and the
district court’s judgment is therefore AFFIRMED. He has also filed
a motion for the appointment of counsel, which is DENIED as
unnecessary.
AFFIRMED; MOTION DENIED.