Chester Huff v. Rick Thaler

Case: 12-40910 Document: 00512208170 Page: 1 Date Filed: 04/15/2013

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
April 15, 2013
No. 12-40910
Summary Calendar Lyle W. Cayce
Clerk

CHESTER LOWE HUFF,

Plaintiff-Appellant

v.

DIRECTOR RICK THALER; STEPHANIE SANCHEZ; MATT BARBER; MARY
HIGHTOWER; DONALD BILNOSKI,

Defendants-Appellees

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:12-CV-118

Before DeMOSS, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
Chester Lowe Huff, Texas prisoner # 582855, filed a 42 U.S.C. § 1983
complaint arguing that the defendants have detained him in administrative
segregation in violation of his constitutional rights. Huff contends that his
confinement to administrative segregation violates his due process rights
because he was never given notice nor an opportunity to be present at the initial
hearing placing him in administrative segregation. He further contends that

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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No. 12-40910

prison rules and procedures were not followed in relation to his disciplinary
hearings and that the Unit Classification Committee improperly classified him
as a safety risk in order to keep him in administrative segregation. He also
complains of the harsh conditions in administrative segregation, which include
isolation from others, limited access to the law library, and no access to personal
property. Huff further maintains that the defendants violated his constitutional
rights by admitting him to the Jester IV Psychiatric Facility as a “‘voluntary’
mental patient when he was incompetent to give informed consent to his
admission.”
Huff consented to proceed before a magistrate judge (MJ) pursuant to 28
U.S.C. § 636(c). Because the MJ found that Huff’s complaint was both frivolous
and failed to state a claim under both 28 U.S.C. § 1915(e) and § 1915A, review
is de novo. See Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005). In the
absence of extraordinary circumstances, administrative segregation does not
impose an atypical and significant hardship required to trigger the protections
of the Due Process Clause. Hernandez v. Velasquez, 522 F.3d 556, 562-64 (5th
Cir. 2008). Huff has not demonstrated extraordinary circumstances in
connection with his administrative segregation. Cf. Wilkinson v. Austin, 545
U.S. 209, 214 (2005); Wilkerson v. Stalder, 329 F.3d 431, 433, 435-36 (5th Cir.
2003). Further, Huff’s claim that the defendants violated his due process rights
by admitting him to Jester IV as a “‘voluntary’ mental patient when he was
incompetent to give informed consent to the admission” is raised for the first
time before this court. As such, this court will not consider it. See Jennings v.
Owens, 602 F.3d at 652, 657 & n.7 (5th Cir. 2010).
Huff also contends that Sergeant Anita Wessels has kept him in
administrative segregation in retaliation for naming her in past prison
grievances. Filing a grievance is a constitutionally protected activity, and a
prison official may not retaliate against a prisoner for engaging in a protected
activity. Woods v. Smith, 60 F.3d 1161, 1164 (5th Cir. 1995). To state a

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No. 12-40910

retaliation claim, a prisoner “must allege the violation of a specific constitutional
right and be prepared to establish that but for the retaliatory motive the
complained of incident . . . would not have occurred.” Id. at 1166. Huff does not
challenge the MJ’s determination that even if he could establish that Sergeant
Wessels signed the administrative segregation review with retaliatory intent,
Huff could not establish that this action alone kept him in administrative
segregation since other security personnel signed off on the monthly reviews.
Huff also does not challenge the MJ’s determination that his ineffectiveness
claim against his counsel substitute is not a cognizable § 1983 claim. As such,
he has abandoned these claims before this court. See Brinkmann v. Dallas
County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
Huff’s appeal lacks any issue of arguable merit, is therefore frivolous, and
is dismissed as such. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983); 5TH
CIR. R. 42.2. This court’s dismissal as frivolous and the district court’s dismissal
of Huff’s § 1983 complaint as frivolous and for failure to state a claim upon
which relief may be granted each count as a strike for purposes of § 1915(g). See
Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Huff was
previously warned that he had accumulated one strike from the district court’s
dismissal of his § 1983 action as frivolous and for failure to state a claim upon
which relief may be granted. See Huff v. Manfredi, No. 12-40579, 2012 WL
6717363, at *3 (5th Cir. Dec. 27, 2012) (unpublished). Because Huff has accum-
ulated three strikes, he is now barred from proceeding in forma pauperis in any
civil action or appeal filed while he is incarcerated or detained in any facility
unless he is under imminent danger of serious physical injury. See § 1915(g).
DISMISSED AS FRIVOLOUS; 28 U.S.G. § 1915(g) BAR IMPOSED.

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