UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-40314
Summary Calendar
RONALD SUTHERLAND,
Plaintiff-Appellant,
VERSUS
WARDEN J. ZELLER; JAMES A. COLLINS, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL
DIVISION; P. IGLESIA,
Defendants-Appellees.
Appeal from the United States District Court
For the Southern District of Texas
(C-94-CV-493)
(October 11, 1995)
Before THORNBERRY, GARWOOD, and DeMOSS, Circuit Judges.
PER CURIAM:*
Appellant, Ronald Sutherland, 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.
*
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should not be published.
I. BACKGROUND
Sutherland's original complaint involved an allegation that he was denied medical
care while confined at the Gurney Unit.1 After being transferred to the Garza Unit, he filed
a supplemental complaint alleging denial of dental care, naming additional defendants,
and seeking monetary and declaratory relief. He also asked for an injunction ordering the
defendants to refrain from denying him medical treatment, and from retaliating against him.
Finally, he filed a motion for appointment of counsel in which he alleged denial of access
to the courts due to the inadequacy of the prison library. After conducting a Spears2
hearing, the district court dismissed the complaint as frivolous.
II. 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.
A. DENIAL OF ACCESS TO COURTS
Sutherland complains that the library at the Garza Unit was inadequate and failed
to meet his needs in preparing for the instant case because it had no Federal Reporters,
Federal Supplements, Shepard's citators, and no Supreme Court Reporters prior to volume
100, and these sources were not available from any source offered by the defendants. He
further asserts that he was unable to rebut legal arguments in responsive pleadings, read
the Spears opinion or any other case quoted in the district court's orders, and complains
1
Sutherland's original complaint included an assertion that
he was denied medical care for his back condition. However, since
he does not raise arguments on appeal regarding this claim, it is
deemed abandoned. Eason, 14 F.3d at 9 n.1.
2
Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
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that he was transferred to the Segovia Unit in Edinburg, which had no law library, just ten
days prior to the hearing.
Prison authorities are required to supply inmates with adequate law libraries or
assistance from persons trained in the law in order to comply with prisoners' constitutional
right of meaningful access to the courts. Bounds v. Smith, 430 U.S. 817, 828, 97 S.Ct.
1491, 1498 (1977). A claim of denial of access to the courts is not valid unless the
litigant's position is prejudiced by the alleged violation. Henthorn v. Swenson, 955 F.2d
351, 354 (5th Cir.), cert. denied, 504 U.S. 988 (1992).
At the Spears hearing Sutherland admitted that he had not missed any filing
deadlines as the result of inadequate access to legal materials. He also admitted that he
had not requested books through inter-library loan, although he was aware of that service.
Sutherland has failed to demonstrate his complaint was dismissed as frivolous because
of the allegedly inadequate law libraries at facilities in which he had been housed.
Consequently, the district court did not abuse its discretion in dismissing this claim as
frivolous.
B. RETALIATION CLAIM
Sutherland contends that because he was a "building tender" during a previous
incarceration he should be protected from retaliation, and complains the district court erred
when it implied that he was not entitled to an injunction because he had placed himself in
jeopardy by being returned to prison. He further asserts that in retaliation for filing this
lawsuit, he was transferred to a prison unit without a law library. Also, he has had his job
changed fourteen times, and has been transferred nine times to seven different units. He
has been denied a promotion in time earning, even though he meets the requirements for
said promotion, and was denied parole without a hearing. In addition, he was denied basic
dental services and threatened for filing an internal affairs inquiry. Finally, Sutherland
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asserts he has been assigned to jobs in violation of his medical classification, and has
been denied educational opportunities.
The law is well established that prison officials may not retaliate against or harass
inmates for exercising their constitutional right of access to the courts. Gibbs v. King, 779
F.2d 1040, 1046 (5th Cir. 1986). The mere assertion of a claim is insufficient. See
Whittington v. Lynaugh, 842 F.2d 818, 819 (5th Cir.), cert. denied, 488 U.S. 840 (1988).
If conduct alleged to constitute retaliation does not by itself raise an inference that such
conduct was retaliatory, the inmate must provide sufficient factual support for his claim in
order to prevail. Ibid.
At the Spears hearing Sutherland testified that, after filing a complaint with the
Internal Affairs Division, he was forced to wait at the Office of Internal Affairs for three
hours, and that during that time, officers made comments suggesting he would be
punished for filing a complaint. His retaliation claim was supported by one missed dental
appointment preceded by a three hour wait and a two hour lockup. He testified that his job
classification had not changed, and that he was not denied good time as retaliation.
Finally, although denied parole, he admitted there was no indication its denial was in
retaliation. The conduct of which Sutherland complains does not, in and of itself, raise the
inference that such conduct was retaliatory, and he has failed to assert sufficient facts in
support of this claim. The court did not abuse its discretion in dismissing this claim as
frivolous.
C. DENIAL OF DENTAL AND MEDICAL CARE
Sutherland complains that as a result of the defendants' deliberate indifference, he
was denied dental and medical care. He first asserts that while housed at the Gurney Unit
a six-week delay in seeing a dentist caused him pain and suffering. He further states he
was denied dental examinations because of equipment failure, and that even after he had
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received treatment, an unnecessary delay transpired before he received proper treatment.
In addition, he states that after seeking medical treatment for an illness he was scheduled
for an appointment with a doctor eleven days later. However, he developed a fever and
was seen by a nurse on an emergency basis. After receiving treatment, he was finally
seen by a doctor, who admitted him to a hospital. Sutherland argues that had the doctor
seen him sooner, hospitalization would not have been required.
Prison officials violate the Eighth Amendment's proscription against cruel and
unusual punishment when they demonstrate deliberate indifference to a prisoner's serious
medical needs, constituting an unnecessary and wanton infliction of pain. Wilson v. Seiter,
501 U.S. 294, 296-97, 111 S.Ct. 2321, 2323 (1991). Deliberate indifference is equivalent
to subjective recklessness in the criminal law; it is more than negligence but less than
intent to harm. Farmer v. Brennan, U.S. , 114 S.Ct. 1970, 1978-79 (1994). A prison
official must know of and disregard an excessive risk to an inmate's health. Id. at 1979.
However, an inmate's disagreement with his medical treatment does not establish a
constitutional violation. See Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991).
A review of the record from the Spears hearing indicates that much of Sutherland's
complaint is nothing other than disagreement with the treatment he received. Further, the
record fails to demonstrate that any TDCJ official was aware that a substantial risk of
serious harm existed. Although under exceptional circumstances a prison official's
knowledge of a substantial risk of harm may be inferred by the obvious nature of the risk,
Sutherland's circumstances are not exceptional. See Farmer, 114 S.Ct. at 1981-82 and
n.8. The district court did not abuse its discretion in dismissing Sutherland's complaints
regarding his dental and medical treatment.
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III. CONCLUSION
Sutherland fails to demonstrate that the district court erred in dismissing his
complaint as frivolous. AFFIRMED.
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