Hailey v. Savers

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 18, 2007

Charles R. Fulbruge III
Clerk
No. 06-10610
Summary Calendar

TONY LYNN HAILEY,

Plaintiff-Appellant,

versus

MICHAEL SAVERS, Assistant Warden; AMY LOWREY, Counsel
Substitute; DENNIS J. MARKGRAFF, Captain; EDEN GREEN,
Grievance Investigator; TERRY BUCK, Mailroom Supervisor;
LISA CONNERS, Grievance Investigator; DAVIDE BASS, Doctor;
ROBERTA HOLLERS, Nurse; PATRICE MAXEY, Medical Administrator;
GARY MESSER; HELEN HARRISON,

Defendants-Appellees.

--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:05-CV-297
--------------------

Before HIGGINBOTHAM, DAVIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Tony Lynn Hailey, Texas prisoner # 911414, proceeding in

forma pauperis and pro se, appeals from the district court’s

dismissal with prejudice of his 42 U.S.C. § 1983 civil rights

complaint as frivolous and for failure to state a claim. In his

complaint, Hailey argued that numerous officials at the Texas

Department of Criminal Justice (TDCJ) Dalhart Unit retaliated

*
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this opinion should not be published and is not precedent except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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against him for filing grievances, engaged in acts of deliberate

indifference to his safety and medical needs, conspired against

him, and denied him access to the courts. Our review is de novo.

Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005).

Retaliation

Hailey asserts that Savers retaliated against him and found

him guilty of a disciplinary violation because Hailey mailed to

the regional director of the prison unit an amendment to a life

endangerment complaint that alleged misconduct by Savers and

other prison officials. Hailey contends that he was punished

with 15 days in solitary confinement, 30 days without recreation

or commissary privileges, and a reduction in line class status.

Hailey’s punishments are not the type of hardships that give

rise to a liberty interest protected by due process. See Madison

v. Parker, 104 F.3d 765, 768 (5th Cir. 1997). Hailey’s claim

concerning Savers’s disciplinary reports does not implicate

Hailey’s constitutional rights. See Castellano v. Fragozo, 352

F.3d 939, 942 (5th Cir. 2003).

Deliberate indifference

Hailey asserts that Savers was aware of grievances regarding

nerve damage and pain in Hailey’s back and knees and that Savers

acted with deliberate indifference to Hailey’s inability to

perform field work. Hailey contends that Savers did not act in

accordance with his supervisory responsibilities and did not

relieve Hailey from his assigned work detail. Hailey’s
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conclusional allegations are insufficient to establish that

Savers knew of and disregarded the risk that Hailey would suffer

injury if he was not assigned to a different work detail. See

Domino v. Texas Dep’t of Criminal Justice, 239 F.3d 752, 756 (5th

Cir. 2001); Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990)

Hailey argues that Dr. Basse, a physician at the Dalhart

Unit, and Maxey, a medical administrator at the Dalhart Unit,

acted with deliberate indifference to his medical needs. Hailey

argues that although Basse did not assign Hailey to field work,

Basse had a duty to reimpose a work restriction for Hailey to

prevent harm to his injured back and knee. Hailey argues that

Maxey failed to intervene as a supervisor after he was notified

of Hailey’s grievances against Basse.

Hailey does not brief the district court’s conclusion that

Basse was unaware of any risk of harm from Hailey’s job

assignment. Rather, Hailey argues only in a conclusional fashion

that Basse should have imposed a work restriction after he became

aware of Hailey’s pain. See Domino, 239 F.3d at 756. To the

extent that Hailey sues Maxey in his role as a supervisor, Hailey

has failed to allege specific facts to demonstrate that Maxey had

personal involvement in placing Hailey in a job assignment that

posed a substantial risk of harm or that Maxey implemented

policies to physically harm Hailey. See Thompkins v. Belt, 828

F.2d 298, 303-04 (5th Cir. 1987).
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Conspiracy

Hailey contends that Lowrey, a substitute counsel employed

by the Dalhart Unit, conspired with Savers and did not

investigate Hailey’s claims and present a reasonable defense at

Hailey’s disciplinary hearing. Hailey asserts that Markgraff

discovered that he had been included in Hailey’s life

endangerment amendment letter and conspired with other prison

officials to retaliate against Hailey for filing a disciplinary

complaint. Hailey asserts that Markgraff was not an impartial

disciplinary hearing officer.

Hailey’s conclusional allegations against Lowrey and

Markgraff do not include facts sufficient to support a conspiracy

claim. See Rodriguez v. Neeley, 169 F.3d 220, 222 (5th Cir.

1999); Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990).

Further, Hailey’s punishment as a result of the disciplinary

proceedings do not implicate a liberty interest. See Madison,

104 F.3d at 768.

Hailey argues that Green and Conners, grievance

investigators at the Dalhart Unit, participated in a conspiracy

to retaliate against him. He argues that Green falsified the

receipt date on Hailey’s grievance appealing his disciplinary

punishment and that Conners refused to file his grievance.

Hailey provides no material facts in support of his claim that

Green and Conners acted maliciously with respect to the filing of

his grievances. See Al-Ra’id v. Ingle, 69 F.3d 28, 32 (5th Cir.
 No. 06-10610
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1995)(generalized assertions and conclusional allegations are

insufficient to establish malice). Moreover, any failure of

these defendants to comply with the TDCJ filing procedures is

insufficient to establish a constitutional violation. See

Jackson v. Cain, 864 F.2d 1235, 1251-52 (5th Cir. 1989). To the

extent that Hailey seeks to raise an independent claim of

malicious prosecution against Green, this claim is non-actionable

under § 1983. See Castellano, 352 F.3d at 942.

Access to the courts

Hailey argues that Buck, a mailroom supervisor at the

Dalhart Unit, violated Hailey’s right of access to the courts by

failing to prevent the opening of Hailey’s mail. Hailey does not

allege personal involvement on the part of Buck, nor does Hailey

allege that Buck implemented policies to infringe upon Hailey’s

constitutional rights. See Thompkins v. Belt, 828 F.2d 298, 303-

04 (5th Cir. 1987). Hailey’s claim of supervisory liability is

non-actionable under § 1983. See Alton v. Texas A & M Univ., 168

F.3d 196, 200 (5th Cir. 1999). Further, Hailey does not allege

prejudice as a result of any interference with his mail. See

McDonald v. Steward, 132 F.3d 225, 230-31 (5th Cir. 1998).

Hailey does not brief sufficiently the district court’s

dismissal of his claims of conspiracy against Messer, Harrison,

and of deliberate indifference against Hollers. Hailey also does

not renew his amended claims that Savers denied various

grievances and that Buck delayed and opened his legal mail.
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These claims are thus abandoned. See Brinkmann v. Dallas County

Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).

Accordingly, the district court did not err in dismissing

Hailey’s § 1983 claims. See Geiger, 404 F.3d at 373.

Hailey’s appeal is without arguable merit, is frivolous, and

is dismissed. See 5TH CIR. R. 42.2. The dismissal of Hailey’s

§ 1983 complaint and the instant dismissal each count 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). Hailey is warned that if

he accumulates three strikes, he may no longer proceed IFP in any

civil action or appeal filed while he is incarcerated or detained

in any facility unless he is under imminent danger of serious

physical injury. See § 1915(g).

APPEAL DISMISSED; SANCTION WARNING ISSUED.