Fowler v. Lynaugh

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-20246
Summary Calendar
_____________________

RALPH W. FOWLER,

Plaintiff-Appellant,

v.

JAMES A. LYNAUGH, ET AL.,

Defendants- Appellees.

_________________________________________________________________

Appeal from the United States District Court
for the Southern District of Texas
(CA-H-93-2516)
_________________________________________________________________
(October 3, 1995)
Before KING, SMITH, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Texas Department of Criminal Justice inmate Ralph W. Fowler

brought this § 1983 civil rights action against various TDCJ

officials, alleging constitutional violations arising from a

housing transfer, disciplinary proceedings, and a work

reassignment. The district court granted the defendants' motion

for summary judgment on the claims arising from the disciplinary

proceeding and dismissed Fowler's other claims as frivolous.

*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
Fowler appeals. We affirm in part and vacate and remand in part

the judgment of the district court.

I. FACTUAL AND PROCEDURAL BACKGROUND

Proceeding pro se and in forma pauperis, Texas Department of

Criminal Justice ("TDCJ") inmate Ralph W. Fowler ("Fowler") filed

this § 1983 civil rights action, alleging that various TDCJ

officials violated his Eighth and Fourteenth Amendment rights.

Fowler named as defendants TDCJ directors James Lynaugh, James

Collins, Wayne Scott, John Stice, and Kent Ramsey. He also named

M. B. Thaler, Jim Gant, and George Pierson, who were wardens at

TDCJ's Ellis One Unit where Fowler was incarcerated, and

correctional officers Captain Timothy Massey, Captain Leonard

Ellis, Lieutenant R. W. Lee, and Sergeant Carl Vest. Finally, he

named TDCJ employee Robert Wise, who served as Fowler's counsel

substitute during his disciplinary proceedings.

Fowler alleged that on March 8, 1993, Sergeant Vest observed

him talking to inmate Larry English and ordered him to report to

Captain Ellis's office. Fowler claimed that he was then strip-

searched, questioned, and asked to take a urine analysis. When

Fowler refused to take the urine analysis, Captain Ellis

allegedly told him that he was not going back to his wing "a

hero" and that he would be moved from his cell to a dormitory "in

order to make it appear that I was being reward[ed] for

snitching." Fowler was moved to a dormitory and inmate English

was moved to pre-hearing detention. As a result, Fowler alleged,

2
the prison grapevine "had it out" that he was Captain Ellis's

snitch and that a "hit" was out on him.

After testifying on English's behalf at a disciplinary

hearing on March 11, Fowler was charged by Sergeant Vest with

possession and use of marijuana and with being out of place. At

the disciplinary hearing on this charge, Captain Massey presided

as hearing officer. Upon recommendation of his counsel

substitute, Robert Wise, Fowler pleaded guilty to being out of

place. He was reclassified to close-custody, lost 365 days of

good-time credits, and received 30 days of commissary

restriction. When Fowler asked Wise for a transcript of his

disciplinary hearing so that he could appeal, Wise stated that he

could provide only a copy of the hearing disposition and an

audiotape of the hearing.

According to Fowler, he was also reassigned to perform

physical labor on a "hoe squad" in further retaliation for

testifying at English's disciplinary hearing. Fowler asserts

that this reassignment was unusual because he has "very limited

mobility, being partially paralyzed since the age of (4)four."

Fowler walks with a cane and a leg brace and was "humiliated" and

"angered" by the job change. Fowler alleged that he spoke with

Warden Gant about the job assignment and that Gant stated that he

would look into it and also would reopen Fowler's disciplinary

case. After approximately two weeks, Fowler was reassigned to

his original job in the laundry room.

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 Warden Gant returned Fowler's first grievance because Fowler

had failed to sign it. Warden Pierson subsequently denied this

grievance. Directors Ramsey and Stice denied Fowler's second and

third grievances. Fowler also filed an internal affairs

complaint, which Lieutenant Lee denied.

In the present action, Fowler alleged that his housing

transfer, disciplinary proceedings, and work reassignment

violated the Eighth Amendment's prohibition of cruel and unusual

punishment. Specifically, he alleged that, because he was

portrayed as a snitch and moved to an open dormitory where other

inmates could easily attack him, he was placed in fear for his

life. He also claimed that the disciplinary proceedings were

brought in retaliation for his testimony on behalf of English and

that the punishment he received for being out of place was

disproportionate to the offense. Finally, Fowler alleged that

his reassignment to the hoe squad also constituted cruel and

unusual punishment because of his medical condition.

Fowler further alleged that the disciplinary proceedings

violated his procedural due process rights under the Fourteenth

Amendment because: (1) an informal resolution was never

attempted; (2) he was not informed properly of the charges; (3)

the disciplinary committee consisted of only one person who was

not impartial; and (4) he was not given adequate notice of the

disciplinary committee's decision.

Warden Gant, Warden Pierson, Captain Massey, Captain Ellis,

and Sergeant Vest were served with the complaint. Gant, Pierson,

4
Massey, and Vest filed motions to dismiss, which the district

court construed as motions for summary judgment. The court

granted the motions with respect to Fowler's claims that the

disciplinary proceedings were retaliatory and violated due

process and that his punishment for being out of place was

disproportionate to the offense.1 The court then dismissed

Fowler's remaining claims as frivolous. Fowler timely appealed.

II. DISCUSSION

Fowler makes the following arguments on appeal: First,

summary judgment was improper on his claim that the disciplinary

proceedings violated his Fourteenth Amendment procedural due

process rights. Second, the district court erred in dismissing

his claim against Captain Ellis that the housing transfer put him

in fear of his life and thus violated the Eighth Amendment.

Third, the district court also erred in dismissing his claim that

his assignment to the hoe squad violated the Eighth Amendment

because such work was cruel and unusual in light of his medical

condition. Finally, the district court should not have dismissed

his action without a Spears hearing. Fowler has apparently

1
The district court also granted summary judgment on a claim
for injunctive relief that Fowler had brought against the
defendants in their official capacities based on his past
treatment. In addition, the court denied Fowler's motions to
file amended and supplemental complaints. Fowler does not appeal
the court's disposition of these matters.

5
abandoned all other claims.2 We address Fowler's arguments in

turn.

A. Disciplinary Proceedings

Fowler argues that the district court improperly granted

summary judgment on his claim that he was denied due process

during his disciplinary proceedings. He argues that he has

suffered greatly because of "the retaliatory practices of the

One-Man Disciplinary Committee." He also argues that the

disciplinary proceedings violated various consent decrees and

TDCJ policies.3 The defendants counter that the TDCJ's

procedures met the constitutional standard for such proceedings,

and therefore, summary judgment was proper.

We review the granting of summary judgment de novo, applying

the same criteria used by the district court in the first

instance. Norman v. Apache Corp., 19 F.3d 1017, 1021 (5th Cir.

1994); Conkling v. Turner, 18 F.3d 1285, 1295 (5th Cir. 1994).

2
In his reply brief, Fowler also lists as an issue whether
the district court erred in granting summary judgment on his
claim that discipline was imposed in retaliation for his
testimony on behalf of inmate English; however, Fowler makes no
legal argument and cites no legal authority in support of this
statement. Although we will liberally construe pro se briefs,
see Haines v. Kerner, 404 U.S. 519, 520 (1972), we still require
arguments to be briefed in order to be preserved. Yohey v.
Collins, 985 F.2d 222, 225 (5th Cir. 1993). Claims not
adequately argued in the body of the brief are deemed abandoned
on appeal. Id. at 224-25. Accordingly, we consider Fowler's
argument on the issue of whether his disciplinary proceeding was
retaliatory to be abandoned.
3
Fowler does not renew his other due process arguments
regarding the disciplinary proceedings. We deem those arguments
abandoned. See Yohey, 985 F.2d at 225.

6
First, we consult the applicable law to ascertain the material

factual issues. King v. Chide, 974 F.2d 653, 655-56 (5th Cir.

1992). We then review the evidence bearing on those issues,

viewing the facts and inferences to be drawn therefrom in the

light most favorable to the nonmoving party. Lemelle v.

Universal Mfg. Corp., 18 F.3d 1268, 1272 (5th Cir. 1994); FDIC

v. Dawson, 4 F.3d 1303, 1306 (5th Cir. 1993), cert. denied, 114

S. Ct. 2673 (1994). Summary judgment is proper "if the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that

the moving party is entitled to judgment as a matter of law."

Fed. R. Civ. P. 56(c).

Under Rule 56(c), the party moving for summary judgment

bears the initial burden of informing the district court of the

basis for its motion and identifying the portions of the record

that it believes demonstrate the absence of a genuine issue of

material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986); Norman, 19 F.3d at 1023. If the moving party meets its

burden, the burden shifts to the non-moving party to establish

the existence of a genuine issue for trial. Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986);

Norman, 19 F.3d at 1023. The burden on the non-moving party is

to do more than simply show that there is some metaphysical doubt

as to the material facts. Matsushita, 475 U.S. at 586.

7
 Because Fowler's punishment included a loss of good-time

credits, he was entitled to the procedural protections espoused

in Wolff v. McDonnell, 418 U.S. 539 (1974). See Murphy v.

Collins, 26 F.3d 541, 543 n.5 (5th Cir. 1994). Wolff requires:

(1) twenty-four hours advance written notice of the charges

against the prisoner; (2) a written statement by the fact finder

as to the evidence relied upon and reasons for the disciplinary

action taken; and (3) the opportunity to call witnesses and to

present documentary evidence as long as doing so does not create

a security risk. Wolff, 418 U.S. at 563-67. Exhibits submitted

by Fowler unequivocally demonstrate that these requirements were

met.

Although the disciplinary committee in Wolff had three

members, the Supreme Court did not obligate prison officials to

provide a hearing before more than one hearing officer. Fowler

does not otherwise identify such a requirement. Indeed, one of

Fowler's exhibits indicates that TDCJ rules have been changed to

provide that a disciplinary hearing may be held in front of a

single officer. Further, even if we assume that TDCJ officials

failed to follow their own regulations, such violation, without

more, does not give rise to a constitutional violation.

Hernandez v. Estelle, 788 F.2d 1154, 1158 (5th Cir. 1986). To

the extent that Fowler argues that the single-person committee

violated prison consent decrees, we note that remedial court

orders do not create or enlarge constitutional rights. See Green

v. McKaskle, 788 F.2d 1116, 1123 (5th Cir. 1986). Accordingly,

8
we conclude that the district court did not err by granting the

defendants' motions for summary judgment with regard to this

claim.

B. Housing Transfer

Fowler argues that the district court erred in dismissing as

frivolous his claim regarding the housing transfer because he was

subjected to cruel and unusual punishment when Captain Ellis

transferred him to the dormitory to make it appear as though he

had "snitched" on inmate English. Specifically, Fowler contends

that, as a result of being labelled a snitch, he has suffered an

impairment to his reputation, personal humiliation, and mental

anguish associated with the fear of being attacked or killed. He

further argues that, because the transfer subjected him to a

substantial risk of injury, the fact that he was not actually

attacked is irrelevant. The defendants counter that dismissal

was proper because Fowler presented no evidence that he actually

suffered pain as a result of the transfer or that Captain Ellis

was aware of the risk that the transfer would create.

A § 1983 plaintiff who proceeds in forma pauperis is subject

to dismissal if his complaint is "frivolous" within the meaning

of 28 U.S.C. § 1915(d). Under § 1915(d), a complaint is

frivolous if "it lacks an arguable basis in either law or fact."

Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke v. Williams,

490 U.S. 319, 325 (1989). A complaint is legally frivolous if it

is premised on an "indisputably meritless legal theory," Neitzke,

9
490 U.S. at 327. Thus, a complaint that raises an arguable

question of law may not be dismissed under § 1915(d), although it

may be subject to dismissal under Rule 12(b)(6) if the court

ultimately resolves the legal question against the plaintiff.

Id. at 328. A complaint is factually frivolous if "the facts

alleged rise to the level of the irrational or the wholly

incredible, whether or not there are judicially noticeable facts

available to contradict them." Denton, 504 U.S. at 33. The

complaint may not be dismissed as factually frivolous simply

because the court finds the plaintiff's allegations unlikely.

Id.

We review § 1915(d) dismissals for an abuse of discretion

because a determination of frivolousnessSQwhether legal or

factualSQis a discretionary one. Id.; Moore v. Mabus, 976 F.2d

268, 270 (5th Cir. 1992). In reviewing for abuse of discretion,

we consider whether (1) the plaintiff is proceeding pro se, (2)

the court inappropriately resolved genuine issues of disputed

fact, (3) the court applied erroneous legal conclusions, (4) the

court has provided an adequate statement of reasons for dismissal

which facilitates intelligent appellate review, and (5) the

dismissal was with or without prejudice. Denton, 504 U.S. at 34.

We have directed the district courts to distinguish between

findings of factual, legal, or mixed factual and legal

frivolousness and to reflect the considerations identified in

Denton in entering § 1915(d) dismissals. Moore, 976 F.2d at 270.

10
 In the case sub judice, the district court determined that

Fowler's claim was frivolous because Fowler did not allege a

deprivation of his Eighth Amendment rights. Specifically, the

court reasoned that Fowler failed to allege that he was subjected

to any violence or attacks as a result of the housing transfer

and that he failed to support his "conclusory" claim regarding

Captain Ellis's motive. Accordingly, the court dismissed this

claim with prejudice.

Prison officials have a duty under the Eighth Amendment to

protect inmates from violence at the hands of other prisoners.

Farmer v. Brennan, 114 S. Ct. 1970, 1976 (1994). To constitute

an Eighth Amendment violation, "the inmate must show that he is

incarcerated under conditions posing a substantial risk of

serious harm" and that the prison official's state of mind was

one of "deliberate indifference" to the inmate's health or

safety. Id. at 1977. A prison official is deliberately

indifferent if he is both "aware of the facts from which the

inference could be drawn that a substantial risk of harm exists"

and he draws the inference. Id. at 1979. Whether a prison

official had the requisite knowledge of the substantial risk is a

question of fact subject to demonstration by circumstantial

evidence. Id. at 1981.

Fowler alleged in his complaint that Captain Ellis told him

that he was going to be moved from his cell to the dormitory in

order to make it appear that he was being rewarded for

"snitching." This allegation is not conclusory. He also alleged

11
that Captain Ellis drew an inference that a substantial risk of

harm existed in being labelled a "snitch." As evidence of this

risk, Fowler has submitted affidavits from other prisoners

stating that Fowler's housing transfer after the incident with

English was an indication that Fowler had "snitched" and that

there was a "hit" on Fowler among the prison population. The

fact that other prisoners did not actually attack Fowler does not

defeat the claim because a prisoner subjected to a substantial

risk of harm is not required to suffer physical injury before

obtaining court-ordered correction. See Farmer, 114 S. Ct. at

1983. Given these allegations, we cannot say that Fowler's claim

is "indisputably meritless" or "wholly incredible" such that it

lacks an arguable basis in law or fact. Accordingly, we conclude

that the district court abused its discretion in dismissing

Fowler's housing transfer claim under § 1915(d).

C. Work Reassignment

Fowler also argues that the district court erred in

dismissing as frivolous his claim that his work reassignment to

the hoe squad constituted cruel and unusual punishment in

violation of the Eighth Amendment. Specifically, Fowler contends

that the assignment inflicted unnecessary suffering because of

his physical handicap. Fowler further contends that the fact

that he was returned to his original work assignment shortly

thereafter is irrelevant because he could be placed on the hoe

squad in the future. The defendants counter that the return of

12
Fowler to his original assignment is fatal to his Eighth

Amendment claim.

Prison work requirements that compel inmates to perform

physical labor that is beyond their strength, endangers their

lives, or causes undue pain may constitute cruel and unusual

punishment. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.

1983). Work which is not cruel and unusual per se may

nevertheless violate the Eighth Amendment if prison officials are

aware it will significantly aggravate a prisoner's serious

medical condition. Jackson v. Cain, 864 F.2d 1235, 1246 (5th

Cir. 1989). In addition to the awareness requirement, the

prisoner must also establish that the prison officials

disregarded the risk to the prisoner "by failing to take

reasonable measures to abate it." Farmer, 114 S. Ct. at 1984.

The allegations in Fowler's original complaint suggest, at

most, that he was assigned to the hoe squad in an effort to

humiliate and embarrass him. Fowler did not allege in his

district court pleadings that the hoe squad assignment caused him

unnecessary pain, and he is therefore foreclosed from raising

this argument for the first time on appeal. Walker v. Navarro

County Jail, 4 F.3d 410, 413 (5th Cir. 1993). Further, Fowler

does not allege that a prison official was aware that the

assignment would significantly aggravate his medical condition.

At any rate, when Fowler brought his medical condition to the

attention of Warden Gant after the assignment was made, he was

returned to his original laundry room assignment within two

13
weeks. Thus, we conclude that the district court did not abuse

its discretion by dismissing Fowler's work reassignment claim as

frivolous.

D. Spears Hearing

Finally, Fowler argues that the dismissal of his action

without a Spears4 hearing or a more definite statement was in

error. The purpose of a Spears hearing is "to supplement the

questionnaires sent to prisoners to elaborate on often less than

artfully-drafted pleadings." Wilson v. Barrientos, 926 F.2d 480,

482 (5th Cir. 1991). Given that Fowler submitted a detailed

response to the defendants' motion for summary judgment, we

conclude that a Spears hearing was neither required nor

necessary.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court's

order granting summary judgment to the defendants on Fowler's due

process claim and dismissing as frivolous Fowler's Eighth

Amendment claim involving his work reassignment; however, we

VACATE that part of the district court's order dismissing

Fowler's Eighth Amendment claim involving his housing transfer

and REMAND for further proceedings consistent with this opinion.

4
Spears v. McCotter, 766 F.2d 179, 181 (5th Cir. 1985).

14