Westbrook v. Treon

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS October 27, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-10004
Summary Calendar

JEFFREY D. WESTBROOK,

Plaintiff-Appellant,

versus

ROBERT R. TREON, Senior Warden; JAMES
D. MOONEYHAM, Assistant Warden; RICHARD
E. WATHEN, Assistant Warden; LEE A. SPEARS,
Law Library Supervisor; ROY MONROE; Law
Library Officer; GARY JOHNSON, Texas Department
of Criminal Justice, Executive Director; JANIE
COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION, FRANK HOKE,
Texas Department of Criminal Justice, Access
to Courts Director; JOHN M. MORIARTY, Texas
Department of Criminal Justice, Inspector
General; JOHN DOE, Texas Department of Criminal
Justice, Region V. Director,

Defendants-Appellees.

--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 7:02-CV-222-R
--------------------

Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.

PER CURIAM:*

Jeffrey Westbrook, Texas prisoner # 670281, appeals the

district court’s dismissal as frivolous of his 42 U.S.C. § 1983

*
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that this opinion should not be published and is not precedent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. 03-10004
-2-

action. He has moved to supplement his appellate brief. This

motion is GRANTED as to Westbrook’s request to add copies of his

personal grievances that he had filed; the motion is otherwise

DENIED.

Westbrook contends that he set forth a meritorious claim

regarding the defendants’ denial of his access to the courts

through the denial of access to the law library and legal

materials. Because Westbrook has not shown an actual injury

through prejudice as a litigant, he is not entitled to relief on

this ground. See Lewis v. Casey, 518 U.S. 343, 349-51 (1996).

Westbrook also alleges that he was denied access to legal

materials in retaliation for filing grievances. As he has

alleged a “chronology of events from which retaliation may

plausibly be inferred,” he has presented a colorable claim under

42 U.S.C. § 1983. See Woods v. Smith, 60 F.3d 1161, 1166 (5th

Cir. 1995). The district court’s judgment is therefore VACATED

as to Westbrook’s claim that defendants Treon, Mooneyham, Watham,

Spears, and Monroe retaliated against him for filing a grievance

by denying him access to the law library and to legal materials.

As Westbrook does not allege personal involvement by the other

defendants as to this claim, he is not entitled to relief against

them. See Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983).

Westbrook maintains that the district court should have

ordered the defendants not to seize or destroy his personal law

books, as they had threatened to do. Verbal threats do not rise
 No. 03-10004
-3-

to the level of a constitutional violation. See Calhoun v.

Hargrove, 312 F.3d 730, 734 (5th Cir. 2002). To the extent that

Westbrook’s personal possessions have been seized, his proper

remedy is in the state courts. See Cathey v. Guenther, 47 F.3d

162, 164 (5th Cir. 1995); Sheppard v. Louisiana Bd. of Parole,

873 F.2d 761, 763 (5th Cir. 1989). Westbrook’s allegation that

the threats and seizures were made for retaliatory purposes are

conclusional and do not set forth a chronology establishing

retaliatory motivations. See Woods, 60 F.3d at 1166.

Westbrook contends that the district court did not rule on

the merits of his claims presented during the Spears hearing.

The court did conclude that Westbrook’s challenges to the

conditions of his confinement were without merit. Moreover,

Westbrook cannot show that the district court abused its

discretion in denying relief on these claims. Westbrook’s

allegation that other prisoners were denied the right to possess

photographs does not establish that Westbrook was denied a

constitutional right. 42 U.S.C. § 1983. Westbrook’s allegation

that the defendants tampered with his legal mail is frivolous; he

admits that the “legal mail” in question did not in fact involve

a legal issue. As for Westbrook’s assertion that he was not

allowed to see the evidence supporting his placement in a

security threat group and that he was required to undergo

Christian-based training to renounce his threat group status, he

has presented evidence establishing that he did not exhaust his
 No. 03-10004
-4-

remedies with respect to these claims before they were presented.

See 42 U.S.C. § 1997e(a). Because Westbrook did not exhaust his

remedies as to this claim, the judgment of the district court is

MODIFIED to reflect that the dismissal of these claims is without

prejudice. The district court did not abuse its discretion in

denying Westbrook’s motion to amend or his motions for

reconsideration. See Jones v. Central Bank, 161 F.3d 311, 312

(5th Cir. 1998); Briddle v. Scott, 63 F.3d 364, 379 (5th Cir.

1995).

Westbrook asserts that the district court abused its

discretion in denying relief on his challenges to his prison

disciplinary proceedings. Westbrook has not established that he

suffered a constitutional violation in his placement in punitive

administrative segregation. See Sandin v. Conner, 515 U.S. 472,

474, 485 (1995); Malchi v. Thaler, 211 F.3d 953, 959 (5th Cir.

2000). Westbrook also contends that the disciplinary case was

brought to retaliate against him for filing the instant lawsuit.

As he admits to having used questionable language in his

grievance, he has not shown that the disciplinary action would

not have been filed but for a retaliatory motivation. Woods, 60

F.3d at 1166.

Westbrook’s two motions for temporary restraining orders are

DENIED. FED. R. APP. P. 8(a)(1)(C); Greene v. Fair, 314 F.2d 200,

202 (5th Cir. 1963). Westbrook has not shown extraordinary

circumstances warranting the appointment of counsel, and this
 No. 03-10004
-5-

motion is also DENIED. See Ulmer v. Chancellor, 691 F.2d 209,

212 (5th Cir. 1982).

AFFIRMED IN PART; VACATED AND REMANDED IN PART; JUDGMENT

MODIFIED IN PART; MOTION TO SUPPLEMENT APPELLATE BRIEF GRANTED IN

PART; MOTIONS FOR APPOINTMENT OF COUNSEL AND FOR TEMPORARY

RESTRAINING ORDERS DENIED.