IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-21060
Summary Calendar
DANA NEIL LOCKE,
Plaintiff-Appellant,
H RAY TERRY et al.,
versus
Defendant-Appellee.
Appeal from the United States District Court
For the Southern District of Texas
CA-H-94-199
June 17, 1996
Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
This is a prisoner’s suit under 42 U.S.C. s 1983. The
district court dismissed the case as frivolous after a Spears
hearing. We affirm.
Plaintiff Locke is former cabaret security guard. In the
course of his employment, he arrested unruly patrons on a regular
basis. He alleges that his former employment places him in danger
of attack from other inmates.
*
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
According to his complaint, Locke was assaulted while in
Dallas County Jail because of his former employment. He was
subsequently moved into the TDCJ-ID. Initially, he was classified
and released into general population, despite his repeated requests
for placement in adseg for his protection. After two or three
reclassification hearings, each of which resulted in placement in
general population, he suffered a nervous breakdown and attempted
suicide on several occasions. Eventually, he was reclassified into
the Safekeeping Program. The Safekeeping Program is for inmates
who for some reason, such as sexual orientation or lack of physical
strength, are unable to be housed safely in general population.
Since then, plaintiff alleges that his fear of coming into
contact with other inmates who might recognize him, recall or
discover the nature of his former employment, and assault him is so
great that he has refused to work in any capacity that requires him
to interact with other prisoners. Because he refuses to work,
prison officials as punishment have kept him in his cell almost 24
hours per day, allowing him to leave only once a day to shower. In
addition, Locke’s refusal to work prevents him from accruing good
time credits, being eligible for parole, and enjoying privileges of
any kind.
Locke sought damages and an injunction requiring officials to
place him in adseg and allow him to work, accrue good time credits,
be eligible for parole, and enjoy privileges. Before this court,
he seeks a reversal of the 1215(d) dismissal below on the merits
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and on the ground that the district court denied him due process by
failing to allow him to call witnesses on his own behalf or to
cross-examine the defendants’ witnesses.
We affirm. Locke concedes that Farmer v. Brennan, 114 S. Ct.
1970 (1994), requires him to show that the defendants’ actions were
taken with subjective deliberate indifference. Even if Locke
proved the allegations in his complaint, no reasonable finder of
fact could conclude that the defendants have acted with subjective
deliberate indifference. The defendants have held at least three
hearings on his prison classification, illustrating that they are
aware of Locke’s difficulties and are taking some action. Locke
wholly fails to explain why the Safekeeping Program is inadequate
to protect him from the risk of harm from other inmates. This
failure is telling, given that the very purpose of the Safekeeping
Program is to protect those inmates that are for some reason in
danger of assault in general population. No rational trier of fact
could conclude that the response of placing him in Safekeeping,
even if negligent, illustrates a deliberately indifferent state of
mind.
Locke’s other claims fail as well. He has no constitutional
right to an opportunity to accrue good time credits, become
eligible for parole, or enjoy privileges. His procedural due
process claim fails because he did not object below or request the
opportunity to cross-examine defendants’ “witness.”
AFFIRMED.
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