IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-31120
Summary Calendar
KEVIN PETERSON,
Plaintiff-Appellant,
versus
JOANN PESHOFF, Individually and in
her official capacity; JOHNNY SMITH,
Individually and in his official capacity;
J. L. LACAZE, Individually and in his
official capacity; GERRY WILLIAMS, Individually
and in his official capacity; MATTHEW GOODIN,
Individually and in his official capacity;
PINDER, Officer, Individually and in her
official capacity; CHAPEL, Sergeant, Individually
and in his official capacity; JIM ROGERS,
Individually and in his official capacity,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 99-CV-381
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May 9, 2000
Before DAVIS, EMILIO M. GARZA and DENNIS, Circuit Judges.
PER CURIAM:*
Kevin Peterson, Louisiana prisoner # 81761, appeals the
district court’s dismissal of his 42 U.S.C. § 1983 action as
frivolous under 28 U.S.C. § 1915(e). He contends that the
*
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that this opinion should not be published and is not precedent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.
No. 99-31120
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district court erred in not granting his motion for a default
judgment or his motion for the appointment of counsel, in
dismissing his claim for retaliation, and in failing to address
his claims of excessive force, unconstitutional conditions of
confinement for failing to provide outdoor exercise for
approximately 47 days, and the defendants’ conspiracy to support
the disciplinary charges against him with false evidence and to
have him punished and transferred to another facility for
pursuing grievances and assisting other inmates with legal work.
The district court dismissed Peterson’s complaint as legally
frivolous, holding that Peterson had admitted that he was placed
in lockdown as punishment for performing legal services for other
inmates without first qualifying as a counsel substitute. The
district court found that because there was a legitimate motive
for placing him in lockdown, he could not establish the causation
necessary to prove a retaliation claim.
The district court did not address Peterson’s other
contentions which he asserted in a motion to amend his complaint.
Because the defendants were not served in this action, Peterson
was entitled to amend his complaint once as a matter of right
under FED. R. CIV. P. 15(a). Therefore, the district court
should have addressed these issues.
We review the dismissal of an action as frivolous for abuse
of discretion. Berry v. Brady, 192 F.3d 504, 507 (5th Cir.
1999). The district court did not abuse its discretion in
dismissing Peterson’s retaliation claim. To establish
retaliation, an inmate must allege the violation of a specific
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constitutional right and show that but for the retaliatory motive
the complained of incident would not have happened. Tighe v.
Wall, 100 F.3d 41, 42 (5th Cir. 1996). There is no
constitutionally protected right to act as inmate counsel.
Id. at 42-43. Therefore, the district court correctly denied
Peterson’s claim of retaliation based on his assisting other
inmates with legal work.
Although the district court did not address his claim of
retaliation with respect to filing grievances, Peterson’s
allegations that he was threatened for filing grievances do not
state a claim. See Robertson v. Plano City of Texas, 70 F.3d 21,
24 (5th Cir. 1995). Further, to the extent that Peterson seeks
to challenge the disciplinary proceedings against him, such
relief is not properly sought under § 1983. See Heck v.
Humphrey, 512 U.S. 477, 486-87 (1994); Clarke v. Stalder, 154
F.3d 186, 189 (5th Cir. 1998) (en banc), cert. denied, 525 U.S.
1151 (1999).
Peterson’s assertion that he was entitled to a default
judgment is specious because the defendants in this action had
not yet been served. Likewise, his challenge to the district
court’s failure to appoint counsel lacks merit. See Ulmer v.
Chancellor, 691 F.2d 209, 212 (5th Cir. 1982); Cooper v. Sheriff,
Lubbock County, Tex., 929 F.2d 1078, 1084 (5th Cir. 1991).
Peterson’s contention that he was deprived of outdoor
exercise for approximately 47 days is frivolous. See Wilkinson
v. Maggio, 703 F.2d 909, 912 (5th Cir. 1983). To the extent
Peterson may state a claim for deprivation of legal materials, he
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has not shown or alleged actual injury resulting from such
deprivation. Therefore, such claim is without merit. See Lewis
v. Casey, 518 U.S. 343, 351-52 (1996).
However, Peterson’s assertion that correctional officers
used excessive force by wantonly and maliciously spraying him
with mace without provocation while he was confined in his cell
is not frivolous. See Gomez v. Chandler, 163 F.3d 921, 923 (5th
Cir. 1999); Baldwin v. Stalder, 137 F.3d 836 (5th Cir. 1998).
Without intimating any view as to the merits of this claim, we
VACATE that portion of the judgment of the district court
dismissing Peterson’s claim for use of excessive force and remand
this issue for further proceedings; we AFFIRM the judgment of the
district court dismissing Peterson’s remaining claims.
AFFIRMED IN PART; VACATED IN PART; REMANDED.