IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-20246
Summary Calendar
RANGE WALDRUP, JR
Plaintiff - Appellant
v.
ROBERT QUADA, JR; MARTHA BLACKBURN; EDNA LARPENTEUR; SYLVIA
PIASTA; RICHARD THALER; TIMOTHY SIMMONS; CRAIG PRICE; ROBERT
CHANCE
Defendants - Appellees
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CV-4366
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August 19, 2002
Before KING, Chief Judge, and SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
Range Waldrup, Jr., TDCJ-ID #548426, appeals the district
court’s dismissal of his 42 U.S.C. § 1983 complaint as frivolous.
Waldrup alleged that: 1) the warden conspired with a judge to
dismiss a prior 42 U.S.C. § 1983 complaint; 2) he was retaliated
against for filing prior complaints; 3) he was denied access to
legal materials and a requested copy of a disciplinary report;
*
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that this opinion should not be published and is not precedent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. 02-20246
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4) mail room workers tampered with his legal mail; 5) he was
denied recreation privileges; 6) prison officials did not act to
prevent a physical attack against him; 7) he is being illegally
confined; and 8) he has been denied medical treatment.
Waldrup has not addressed his claims of conspiracy and
denial of recreation on appeal. Issues not adequately argued in
the brief are deemed abandoned. See Yohey v. Collins, 985 F.2d
222, 224-25 (5th Cir. 1993).
To establish retaliation, a prisoner must show “(1) a
specific constitutional right, (2) the defendant’s intent to
retaliate against the prisoner for his or her exercise of that
right, (3) a retaliatory adverse act, and (4) causation.”
McDonald v. Steward, 132 F.3d 225, 231 (5th Cir. 1998). “The
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 v. Smith, 60 F.3d
1161, 1166 (5th Cir. 1995)(citation omitted). Waldrup has failed
to allege direct evidence of motivation or facts from which
retaliation may be inferred.
To establish a violation of his right of access to the
courts, a prisoner must allege that his position as a litigant
was prejudiced. See Walker v. Navarro County Jail, 4 F.3d 410,
413 (5th Cir. 1993). Waldrup has not shown that his position as
a litigant in a particular case was prejudiced by the actions of
the law library supervisor.
No. 02-20246
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Interference with a prisoner’s legal mail also may violate
the constitutional right of access to the courts. Brewer v.
Wilkinson, 3 F.3d 816, 820 (5th Cir. 1993). To state a claim of
interference with the mail, a plaintiff must show actual injury.
See Walker, 4 F.3d at 413. Waldrup’s letters were marked “return
to sender,” and officials admitted one letter was opened by
negligence or mistake, while another was opened in Waldrup’s
presence. He offers no evidence that other letters that were
allegedly opened were opened in the prison mailroom. At most,
Waldrup has shown that any tampering interfered with his
opportunity to retain a particular attorney, because he
acknowledged that he had contacted other attorneys.
Waldrup’s claims that various supervisors should have
transferred him to prevent a physical attack were raised in his
prior complaint and were properly dismissed. See Wilson v.
Lynaugh, 878 F.2d 846, 850 (5th Cir. 1989). His claim regarding
the confiscation of a gold chain is without merit; when a
plaintiff alleges that he has been deprived of his property
without due process of law by negligent or intentional actions of
a state officer that are “random and unauthorized,” a
postdeprivation tort cause of action in state law is sufficient
to satisfy due process. Parratt v. Taylor, 451 U.S. 527, 541-44
(1981) (overruled in other part, Daniels v. Williams, 474 U.S.
327 (1986)); Hudson v. Palmer, 468 U.S. 517, 533 (1984). Texas
has adequate postdeprivation remedies for the confiscation of
No. 02-20246
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prisoner property, such as a tort action for conversion. See
Cathey v. Guenther, 47 F.3d 162, 164 (5th Cir. 1995)
Waldrup’s assertions that he is being illegally confined and
that he was convicted by “planted” evidences are attacks on his
conviction and cannot be considered in a 42 U.S.C. § 1983
proceeding. See Johnson v. McElveen, 101 F.3d 423, 424 (5th Cir.
1996). To the extent this claim seeks to recover money damages
for illegal confinement, it is improper under Heck v. Humphrey,
512 U.S. 477 (1994).
Negligence and medical malpractice do not give rise to a
§ 1983 cause of action, and an inmate’s disagreement with his
medical treatment does not establish a constitutional violation.
Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991). Waldrup
disagreement with the decisions of prison medical personnel is
insufficient to establish a constitutional violation. See
Varnado, 920 F.2d at 321.
The district court’s dismissal of Waldrup’s complaint as
frivolous counts as a strike for purposes of 28 U.S.C. § 1915(g).
See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).
Waldrup is cautioned that if he accumulates three strikes, he
will no longer be allowed to proceed in forma pauperis in any
civil action or appeal filed while he is detained or incarcerated
in any facility unless he is under imminent danger of serious
physical injury. See 28 U.S.C. § 1915(g).
AFFIRMED; MOTIONS DENIED; SANCTIONS WARNING ISSUED.