Case: 10-30093 Document: 00511383998 Page: 1 Date Filed: 02/16/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 16, 2011
No. 10-30093
Summary Calendar Lyle W. Cayce
Clerk
AUTRY LEE JONES,
Plaintiff-Appellant
v.
UNITED STATES OF AMERICA, Through the Department of Justice;
CONDOLEEZZA RICE, SECRETARY OF STATE; HARVEY LAPPIE, Director
of Bureau of Prisons, Chief Trust Fund Officer of Inmate Trust Fund; H. CHAIN,
AW-of Industry and Education; D. ROACH, Chief Financial Officer; D. DIXON,
Counselor; D. LAIR, Counselor; R. MCGOWAN, Counselor; J. FLATTER,
Physician; MICHAEL M. ATWOOD,
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:09-CV-33
Before JONES, Chief Judge, and JOLLY and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Autry Lee Jones, federal prisoner # 52873-080, appeals from the dismissal
of his in forma pauperis (IFP) civil rights complaint filed pursuant to Bivens v.
Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) in
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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No. 10-30093
which he alleges various civil rights violations. Because the district court
dismissed the suit both for failure to state a claim upon which relief may be
granted and as frivolous, our review is de novo. See § 1915(e)(2)(B)(i) and (ii);
Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005).
Jones’s claim that the one-year statute of limitations imposed by the
Antiterrorism and Effective Death Penalty Act (AEDPA) is unconstitutional
lacks merit. See Molo v. Johnson, 207 F.3d 773, 775 (5th Cir. 2000); Lockett v.
Day, 264 F.3d 1140 (5th Cir. 2001) (unpublished). Because Jones’s complaint
reveals, and he does not contest on appeal, that he mailed his Freedom of
Information Act (FOIA) request to Secretary of State Condoleezza Rice at an
address other than that specified in the applicable FOIA regulations, his request
was invalid, and the district court did not err by dismissing his FOIA claim. See
Hedley v. United States, 594 F.2d 1043, 1043-44 (5th Cir. 1979); 5 U.S.C.
§ 552(a)(3)(A) and (6)(A)(i).
Jones’s claim that defendants Harvey Lappin1 and D. Roach violated his
due process rights by using an improper method of calculating his overtime pay
for his Department of Justice’s Federal Prison Industries (UNICOR) job fails to
state a claim since he did not have a constitutional right to be compensated for
work performed while he was incarcerated. See Wendt v. Lynaugh, 841 F.2d
619, 621 (5th Cir. 1988); see also Edwards v. Johnson, 209 F.3d 772, 779 (5th
Cir. 2000) (holding that the violation of prison regulations does not itself
constitute a constitutional violation).
He also fails to state valid claims that defendants Lappin, D. Dixon,
D. Lair, and R. McGowan violated his due process rights prior to and during the
disciplinary hearing which resulted in his loss of UNICOR employment. See
Bulger v. United States Bureau of Prisons, 65 F.3d 48, 49-50 (5th Cir. 1995)
(holding that inmates do not have a constitutional right to UNICOR employment
1
We note that the official caption incorrectly identifies the defendant as Harvey Lappie.
2
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No. 10-30093
that would entitle them to due process protection). His claims that defendants
Lappin, Dixon, Lair, McGowan, and H. Chain violated his equal protection rights
offer no more than conclusory assertions that the defendants intentionally
treated him differently than other inmates. See Village of Willowbrook v. Olech,
528 U.S. 562, 564 (2000); Koch v. Puckett, 907 F.2d 524, 530 (5th Cir.1990)
(holding that conclusory allegations do not give rise to a constitutional violation).
Because Jones had an opportunity to respond to the defendants’ motion to
dismiss and because he has not identified any additional facts that he would
have presented had the district court held a hearing pursuant to Spears v.
McCotter, 766 F.2d 179 (5th Cir. 1985), he has not shown that the district court
abused its discretion in declining to hold such a hearing. See Eason v. Thaler,
14 F.3d 8, 9 (5th Cir. 1994).
Jones’s claim that defendants Chain, Lappin, Dixon, Lair, and McGowan
retaliated against him by disciplining him and terminating him from his
UNICOR employment fails to allege the violation of a constitutional right
because his employment was not subject to constitutional protections. Tighe v.
Wall, 100 F.3d 41, 43 (5th Cir.1996). Moreover, his claim is conclusory since a
retaliatory intent by the defendants at issue may not be plausibly inferred based
upon his allegations. See Jones v. Greninger, 188 F.3d 322, 324-25 (5th Cir.
1999); Koch, 907 F.2d at 530.
Because Jones fails to provide sufficient factual support for his allegations
that defendants Lappin and Michael M. Atwood spent inmate trust fund monies
on improper expenditures, and because he does not identify how those alleged
expenditures failed to benefit the inmate body as a whole, his claim regarding
misappropriation of inmate trust fund monies is conclusory. See Maydak v.
United States, 363 F.3d 512, 522 (D.C. Cir. 2004) (observing that monies from
the fund at issue may be expended “for any purpose accruing to the benefit of the
inmate body, as a whole, such as amusements, education, library, or general
3
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No. 10-30093
welfare work.”) (internal quotation marks and citations omitted); Koch, 907
F.2d at 530.
Jones does not challenge the district court’s dismissal of his claim that his
Eighth Amendment rights were violated because Flatter was deliberately
indifferent to his medical needs by providing inadequate care for his hepatitis
C. Accordingly, he has abandoned any such claim on appeal. See Brinkmann v.
Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Finally,
the district court did not err by dismissing as frivolous, based on the record,
Jones’s claim that defendant Flatter acted with deliberate indifference to his
other alleged medical needs. See Burleson v. Texas Dep’t of Criminal Justice,
393 F.3d 577, 589 (5th Cir. 2004); Sojourner T v. Edwards, 974 F.2d 27, 30 (5th
Cir. 1992) (holding that this court may “affirm the district court’s judgment on
any grounds supported by the record”).
Jones’s appeal lacks any issue of arguable merit and is therefore frivolous.
See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). The district court’s
dismissal of his complaint and this court’s dismissal of this appeal as frivolous
count as two strikes for purposes of 28 U.S.C. § 1915(g). See Adepegba v.
Hammons, 103 F.3d 383, 387 (5th Cir. 1996). Further, Jones already has two
prior strikes from the earlier dismissal of a suit as frivolous and for failure to
state a claim. Jones v. Judge of 129th, Harris Cnty Dist. Court, 113 F. App’x
603, 604-05 (5th Cir. 2004). Because Jones has accumulated more than three
strikes, he may not proceed in forma pauperis unless he “is under imminent
danger of serious physical injury.” § 1915(g).
Jones’s appeal is DISMISSED as frivolous pursuant to 5 TH C IR. R. 42.2.
4