UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-20365
Summary Calendar
JIMMY LOYD GRANTHAM,
Plaintiff-Appellant,
VERSUS
GARY JOHNSON, Warden; J. COOK; RAYMOND THOMPSON,
Defendants-Appellees.
Appeal from the United States District Court
For the Southern District of Texas
(H-94-CV-2507)
October 6, 1995
Before THORNBERRY, GARWOOD and DEMOSS, Circuit Judges:
PER CURIAM:*
Jimmy Loyd Grantham, an inmate currently incarcerated in the Institutional Division
of the Texas Department of Criminal Justice, appeals the dismissal of his pro se in forma
pauperis civil rights complaint. We affirm.
Background
*
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should not be published.
In this 42 U.S.C. § 1983 complaint Grantham asserted the Appellees violated his
right to be free from cruel and unusual punishment when they refused to transfer him to
another unit after assaults by other inmates. He also contended that he was improperly
classified and should not be forced to live on "close custody" because he is a non-violent
offender. After holding a Spears hearing, the district found the complaint frivolous and
dismissed it with prejudice.
Discussion
The district court may dismiss a complaint as frivolous it if lacks an arguable basis
in law or fact. Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994). Such dismissal is reviewed
for an abuse of discretion. Ibid.
At the Spears hearing Grantham testified that on March 17, 1994, inmate Virgil
Thompson hit him in the head several times because he refused to participate in
homosexual acts, and said that another inmate had put him up to it. Grantham further
testified that on March 19, 1994, he was assaulted by inmate Philip Neal. Grantham
reported these assaults and, on March 26, 1994, asked Major Cook to transfer him from
the Ferguson Unit, but his request was denied. On April 10 or 12, 1994, inmate Claude
Wood hit him in the head with an "Aggie handle" while he was working in the fields,
because Grantham did not cut enough grass. Although he reported this attack to his case
manager and to Major Cook, his transfer still was refused. The district court found there
was no evidence that TDCJ officials acted with deliberate indifference to Grantham's
health or safety by refusing to transfer him.
Prison officials may be held liable under § 1983 for harm inflicted by one inmate on
another if: 1) the injured inmate shows he is incarcerated under conditions posing a
substantial risk of serious harm, and; 2) officials are deliberately indifferent to the inmate's
health or safety. Farmer v. Brennan, U.S. , 114 S.Ct. 1970, 1977 (1994). To establish
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deliberate indifference resulting in an Eighth Amendment violation, the inmate must show
that prison officials acted or failed to act despite his knowledge of a substantial risk of
serious harm. Id. at 1981. Mere lack of care by prison officials resulting in injury to an
inmate does not rise to the level of abusive government conduct actionable in a § 1983
action. Davidson v. Cannon, 474 U.S. 344, 347-48, 106 S.Ct. 668, 670 (1986).
Grantham's claim does not show TDCJ officials were deliberately indifferent to his
safety. Warden Doughty testified that his complaints regarding the assaults in March were
investigated, Grantham was interviewed, and a determination was made not to transfer
him. Grantham has not claimed he was harmed at any time after April 12, 1994, the date
of the assault by Wood. Medical testimony at the hearing showed that when Grantham
went to sick call on April 13, 1994, he did not complain of the injury inflicted by Wood. He
testified that he was not seriously hurt by Wood, and that this incident was not related to
the other assaults. Thus, it could not have been anticipated by Warden Johnson or Major
Cook. Evidence at the hearing failed to establish the existence of an Eighth Amendment
violation. See Farmer v. Brennan, 114 S.Ct. at 1981.
Grantham's second complaint is that he should not have been placed on close
custody because he was not a violent offender. Major Doughty testified at the hearing that
Grantham was classified as one needing safekeeping because he was mentally and
physically unable to cope with larger more aggressive inmates. He also had nineteen
major disciplinary cases since being incarcerated, ranging from refusing to obey an order
and refusing to work, to possession of contraband. According to Doughty, Gantham was
properly housed.1 In rejecting this claim, the district court found that Grantham's claim of
1
Grantham testified he had been recently transferred to a
unit along with Thompson and Neal, the same inmates who he accused
of assaulting him. However, Grantham has complained of no further
attacks by these or any other inmates. The district court
suggested that TDCJ unit officials should look into the placing of
Thompson and Neal.
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being wrongfully placed in close custody did not rise to the level of an Eighth Amendment
violation because there was no evidence the Appellees' action was irrational, cruel, or
unusual.
Prison officials have broad discretion, free from judicial intervention, in classifying
inmates, and in application of policies and practices designed to maintain security and
preserve internal order. McCord v. Maggio, 910 F.2d 1248, 1250-51 (5th Cir. 1990).
Doughty's testimony regarding Grantham's disciplinary record was supported at the
hearing with appropriate documentation, and Grantham did not deny its existence.2 The
record supports the district court's rejection of this claim.
Conclusion
The district court did not abuse its discretion in dismissing Grantham's § 1983
action. Therefore, the judgment of dismissal with prejudice is
AFFIRMED.
2
Grantham argues for the first time on appeal that he did
not have two or more disciplinary convictions resulting in major
penalties within the past twelve months. This issue was not
presented to the district court, and so is not properly preserved
for appellate review. Varnado v. Lynaugh, 920 F.3d 320, 321 (5th
Cir. 1991).
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