UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-10324
Summary Calendar
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PAUL J. CONNALL,
Plaintiff-Appellant,
and
JAMES RUSSELL HULL,
Plaintiff,
VERSUS
JAMES A. COLLINS, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION; R. DREWRY, WARDEN;
C. BELL, WARDEN; J.V. YOUNG, WARDEN; W. STEPHENS, MAJOR,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
(1:94-CV-101-C)
____________________________________________________
October 30, 1995
Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges.
PER CURIUM:1
Paul Jeffrey Connall, an inmate at the Texas Department of
Criminal Justice (TDCJ-ID), appeals the dismissal of his claim.
Because we agree with the district court that the claim is
frivolous, we AFFIRM.
1
Local Rule 47.5.1 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should not be published.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.
Connall brought this 42 U.S.C. § 1983 action against various
officers and employees of TDCJ-ID, claiming that the policy of
forced racial integration of cells violated his federally-protected
rights.2 Connall alleged both that the defendants violated the
consent decree in Lamar v. Coffield3 and that their failure to
afford him a racially segregated cell assignment also violated the
Eighth and Fourteenth Amendments.
The magistrate judge held a Spears hearing and then
recommended dismissing Connall's complaint as frivolous, pursuant
to 28 U.S.C. § 1915(d); and Connall filed objections to the
magistrate judge's report. The district court, over those
objections, adopted the report and dismissed the complaint as
frivolous.
II.
A complaint is frivolous if it lacks an arguable basis in
law or fact. 28 U.S.C. § 1915(d); e.g., Ancar v. Sara Plasma,
Inc., 964 F.2d 465, 468 (5th Cir. 1992). This court reviews the
district court's dismissal as frivolous only for abuse of
discretion. Ancar. It is inappropriate to dismiss a claim as
2
James Russell Hull was a named plaintiff in the original
complaint. However, the district court dismissed Hull's claims
without prejudice due to his failure to pay the filing fee or file
an application to proceed IFP.
3
See Ruiz v. Estelle, 650 F.2d 555, 570 (5th Cir. 1981)
(subsequent history not noted) for reference. The consent decree
was not made part of the record. However, because, as discussed
infra, a violation of a consent decree cannot form the basis of a
§1983 action, we need not consider what, if anything, the decree
required the defendants to do.
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frivolous if, with additional factual development, the allegations
may pass § 1915(d) muster. Eason v. Thaler, 14 F.3d 8, 10 (5th
Cir. 1994).
A.
To the extent that Connall's claim concerns a violation of a
consent decree, it is not cognizable under §1983 because, under the
law of this circuit, a remedial decree does not create rights
secured by the laws within the meaning of §1983. Galloway v. State
of Louisiana, 817 F.2d 1154, 1157 (5th Cir. 1987). "[A] remedial
court order, standing alone, does not serve as the basis for § 1983
liability." Green v. McKaskle, 788 F.2d 1116, 1124 (5th Cir.
1986).
B.
1.
Racial segregation in prisons is unconstitutional, except to
the extent necessary for prison security and discipline. Lee v.
Washington, 390 U.S. 333, 333-34 (1968). Connall has no
constitutionally protected liberty interest in being provided a
racially-segregated, and therefore unconstitutional, cell
assignment based solely on his desire not to be so assigned. His
assignment does not violate the Fourteenth Amendment.
2.
The Eighth Amendment does provide prisoners protection against
injury at the hands of other inmates. Johnston v. Lucas, 786 F.2d
1254, 1259 (5th Cir. 1986). However, in order to establish
liability under the Eighth Amendment for denial of protection
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against harm from other inmates, the prisoner must show deliberate
indifference by prison officials. Id. at 1260. A prison official
acts with deliberate indifference "only if he knows that inmates
face a substantial risk of serious harm and [he] disregards that
risk by failing to take reasonable measures to abate it". Farmer
v. Brennan, 114 S. Ct. 1970, 1984 (1994).
Based upon the Spears hearing, the magistrate judge made the
following factual findings, which the district court adopted:
Although [Connall] claims to have a number of
enemies . . . , none of the instances in which
he refused his cell assignment has even been
alleged to [involve] one of those enemies.
The sole reason espoused for [Connell's]
refusal for integration has been his desire to
maintain his racist attitude and belief.
There is no evidence of any alleged assault
during the times that [Connall] [has been] an
inmate at the French Robertson Unit, [TDCJ-ID]
. . . .
The magistrate judge concluded that "[Connall had] not been
assaulted or injured as a result of any forced integration."
Therefore, no harm existed to which the defendants could have been
deliberately indifferent.
In Connall's objections to the magistrate judge's report, he
alleged that he had been a victim of violence and theft by black
and hispanic inmates. However, even if the district court had
construed the objection as a motion to amend his complaint to
allege those additional facts,4 the court would have been within
4
See McGruder v. Phelps, 608 F.2d 1023, 1025 (5th Cir. 1979).
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its discretion in dismissing the claim as frivolous because Connall
has not alleged that the defendants were deliberately indifferent
in connection with those additional facts.5
III.
For the foregoing reasons the judgment of the district court
is
AFFIRMED.
5
Connall's motion to file a supplemental brief is DENIED.
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