Case: 21-40086 Document: 00516407172 Page: 1 Date Filed: 07/26/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 26, 2022
No. 21-40086 Lyle W. Cayce
Summary Calendar Clerk
Earnest J. Matthews,
Plaintiff—Appellant,
versus
Stacey LeBlanc; Syed Ahmed; Patricia Miller,
Defendants—Appellees.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:18-CV-9
Before Southwick, Oldham, and Wilson, Circuit Judges.
Per Curiam:*
A Texas prison inmate sued officials at the prison for violations of his
civil rights. The district court dismissed for failure to state a claim upon
which relief can be granted. We AFFIRM.
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 21-40086
FACTUAL AND PROCEDURAL BACKGROUND
Earnest Matthews is an inmate currently in the custody of the Texas
Department of Criminal Justice. Matthews brought a 42 U.S.C. § 1983
lawsuit against Department officials, alleging that his civil rights had been
violated. He alleged that a prison guard, Sergeant Patricia Miller, directed
racial slurs at him and was biased against African-American inmates.
Matthews asserted that on one occasion, Miller struck another inmate and
addressed him with a racial slur. He further alleged that two prison officials,
Captain Syed Ahmed and Warden Stacey LeBlanc, failed to protect him from
Miller or supervise her in any meaningful way. 1
The district court ordered all three defendants to answer. The Office
of the Texas Attorney General moved to dismiss the claims against LeBlanc
but asserted that it could not represent Miller or Ahmed.
A magistrate judge recommended the dismissal of LeBlanc from the
case. A later recommendation was that Miller and Ahmed, who had yet to
make an appearance in the action, also be dismissed pursuant to 28 U.S.C. §
1915(A)(b). The district court agreed with both recommendations. The court
entered a final judgment dismissing Matthews’s claims. Matthews appealed.
DISCUSSION
Section 1915A provides for early dismissal of prisoner complaints “if
the complaint . . . is frivolous, malicious, or fails to state a claim upon which
relief may be granted; or . . . seeks monetary relief from a defendant who is
1
Matthews also asserts in his brief that there was a “verbal agreement” between
him, other inmates, and Miller about keeping quiet about some incident involving synthetic
marijuana. He did not raise this argument before the district court, and it is therefore
forfeited. See LeMaire v. Louisiana Dep’t of Transp. & Dev., 480 F.3d 383, 387 (5th Cir.
2007).
2
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No. 21-40086
immune from such relief.” 28 U.S.C. § 1915A(b). This court examines
“dismissals under Section 1915A(b)(1) de novo, using the standard applied
under Federal Rule of Civil Procedure 12(b)(6).” DeMarco v. Davis, 914 F.3d
383, 386 (5th Cir. 2019). We “take[] the facts alleged in the complaint as true
and view[] them in the light most favorable to” the plaintiff. Green v.
Atkinson, 623 F.3d 278, 280 (5th Cir. 2010). Still, the “[f]actual allegations
must be enough to raise a right to relief above the speculative level.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Threadbare recitals of a cause
of action’s elements” will not do. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
A pro se complaint is construed liberally. Butler v. S. Porter, 999 F.3d 287, 292
(5th Cir. 2021).
We begin with Matthews’s claims against Miller, which appear to be
an amalgam of Eighth Amendment and Fourteenth Amendment violations
arising out of Miller’s interactions with Matthews. Section 1983 allows for
civil suits for violations of constitutional rights. 42 U.S.C. § 1983. Though
inmates “have the constitutional right to be free of racial discrimination,”
mere allegations of verbal abuse or epithets, reprehensible though they may
be, do not amount to a cognizable constitutional violation under Section 1983.
See Bentley v. Beck, 625 F.2d 70, 70–71 (5th Cir. 1980) (per curiam); Bender v.
Brumley, 1 F.3d 271, 274 n.4 (5th Cir. 1993).
Verbal abuse is all Matthews has alleged. 2 Further, Matthews makes
no allegations that he was treated differently because of his race but only
2
Matthews’s claims regarding the treatment of other inmates were also properly
dismissed. Article III requires that a litigant seeking redress in federal court have standing
to bring a claim. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). A party seeking to
assert the rights of others, though, must meet an even higher standard that requires: (1)
“injury in fact”; (2) a “close” relationship to the other party; and (3) “some hindrance to
the third party’s ability to protect his or her own interests.” Powers v. Ohio, 499 U.S. 400,
3
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No. 21-40086
loosely asserts that he was called a “snitch” and treated differently because
he “talked politics.” Consequently, Matthews’s constitutional claims
concerning Miller’s behavior were properly dismissed.
Matthews’s remaining claims relate to Ahmed and LeBlanc in their
roles as supervisors. The magistrate judge properly held there was no
vicarious liability under Section 1983. See Ashcroft, 556 U.S. at 676. Instead,
a litigant must demonstrate that the supervisor either (1) participated
personally in the constitutional violation or (2) “implement[ed]
unconstitutional policies that causally result in plaintiff’s injury.” Baker v.
Putnal, 75 F.3d 190, 199 (5th Cir. 1996). Matthews has not pled facts that
would allow him to prevail on either theory. The district court properly
dismissed these supervisory claims against LeBlanc and Ahmed.
Matthews also raises a failure-to-protect claim against Ahmed and
LeBlanc. 3 To prevail, the litigant first “must show that he is incarcerated
under conditions posing a substantial risk of serious harm.” Farmer v.
Brennan, 511 U.S. 825, 834 (1994). Second, the litigant must demonstrate
that the prison official was deliberately indifferent to the inmate’s “health or
safety.” See id. Matthews has shown neither. At most, Matthews has alleged
that Miller uses offensive racial slurs and once had an altercation with
another inmate. We cannot say on this record that Matthews’s various
allegations show a “substantial risk of harm” to him as contemplated by the
Eighth Amendment. See id. The district court correctly dismissed this claim
as well.
410–11 (1991). Matthews has demonstrated none of these elements. These claims were
properly dismissed.
3
Warden LeBlanc invoked the doctrine of qualified immunity in her motion to
dismiss. Because we conclude that Matthews has failed to plead sufficient facts to support
his claim, we need not reach this argument.
4
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No. 21-40086
Finally, to the extent that Matthews seeks monetary damages against
the prison officials in their official capacities, the Eleventh Amendment bars
that relief. See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 65–67
(1989).
AFFIRMED.
5