IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-11009
Conference Calendar
ALLEN GLENN THOMAS,
Plaintiff-Appellant,
versus
CHERI R. PERRY, Correctional Officer III; RICHARD A. AVANTS,
Captain; MARIO V. SANCHEZ, Sergeant; ROBERT KELLEHER, Grievance
Investigator; EMILY L. BOND, Assistant Warden; JOE D. TRUMBO,
Sergeant,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:00-CV-31
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April 10, 2002
Before SMITH, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
Allen Glenn Thomas (TDCJ # 633145) appeals the dismissal as
frivolous of his pro se and in forma pauperis (IFP) civil rights
complaint wherein he alleged that several of the defendants had
conspired to retaliate against him for filing grievances, and had
violated his right to due process in connection with a
disciplinary action.
*
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that this opinion should not be published and is not precedent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. 01-11009
-2-
The district court shall dismiss a prisoner’s IFP civil
rights complaint if the court determines that the action is
frivolous or fails to state a claim upon which relief may be
granted. Black v. Warren, 134 F.3d 732, 733 (5th Cir. 1998); see
28 U.S.C. § 1915(e)(2)(B)(i) & (ii), § 1915A. A complaint is
frivolous if it lacks an arguable basis in law or fact. Berry v.
Brady, 192 F.3d 504, 507 (5th Cir. 1999). We review the
dismissal of a prisoner’s complaint as frivolous for an abuse of
discretion. Berry, 192 F.3d at 507.
Thomas argues that the district court impermissibly
dismissed his complaint based on credibility determinations and
that the court should have required the defendants to answer the
complaint in order to resolve factual disputes. The record does
not, however, support Thomas’s assertion that the dismissal of
his complaint was based on credibility determinations. Nor does
the record support his assertion that the district court resolved
factual disputes against him.
Thomas also argues that the district court abused its
discretion by failing to view his complaint as asserting a denial
of due process based on a violation of the TDCJ policy
prohibiting the filing of disciplinary actions based on a
retaliatory motive. To state a claim of retaliation, Thomas must
show, inter alia, that the complained of incident would not have
occurred absent the retaliatory motive. See Johnson v.
Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997). Thomas fails to do
so in this case. Thomas’s assertion that he was not allowed to
confront and cross-examine adverse witnesses at the disciplinary
No. 01-11009
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hearing, and his assertion that the disciplinary captain excluded
evidence fail because Thomas has not shown that his disciplinary
conviction has been overturned or otherwise declared invalid.
See Clarke v. Stalder, 154 F.3d 186, 189 (5th Cir. 1998)(en
banc)(citing Edwards v. Balisok, 520 U.S. 641, 646 (1997)). The
judgment of the district court is AFFIRMED. All outstanding
motions are DENIED.