Jed Lineberry v. USA, et al

Filing 511130779

Jed Lineberry v. USA, et al

Doc. 511130779

Case: 09-40262

Document: 00511130779

Page: 1

Date Filed: 06/03/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-40262 S u m m a r y Calendar June 3, 2010 Lyle W. Cayce Clerk

J E D STEWART LINEBERRY, P l a in t i f f - A p p e l l a n t v. U N IT E D STATES OF AMERICA; FEDERAL BUREAU OF PRISONS; HARLEY L A P P I N , Director of Bureau of Prisons; FEDERAL CORRECTIONAL IN S T IT U T IO N TEXARKANA, D e fe n d a n ts -A p p e lle e s

A p p e a l from the United States District Court fo r the Eastern District of Texas U S D C No. 5:08-CV-72

B e fo r e JONES, Chief Judge, and DAVIS and WIENER, Circuit Judges. P E R CURIAM:* J e d Stewart Lineberry, federal prisoner # R10296-078, is appealing the d is tr ic t court's dismissal with prejudice of his claims, arising during his in c a r c e ra t io n at the Federal Correctional Institution (FCI) in Texarkana, Texas, in which he sought injunctive relief and damages under the Federal Tort Claims A c t (FTCA) and Bivens v. Six Unknown Named Agents of Narcotics, 403 U.S. 388

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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(1 9 7 1 ). Lineberry also appeals the dismissal without prejudice of claims arising d u r in g his incarceration at the FCI, Seagoville, which were dismissed as being d u p l ic a t i v e of claims he raised in a suit pending in the Northern District of T exas. L in e b e r r y has not challenged the dismissal of his claims under the FTCA fo r failure to exhaust his administrative remedies. Thus, he has abandoned th o s e claims on appeal. See Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir. 1 9 9 9 ). L in e b e r r y complains that he did not consent to the matter being referred t o the magistrate judge and that based on his objections filed pursuant to 28 U .S .C . § 636(c), the magistrate judge lost all jurisdiction to conduct any p r o c e e d in g s in his case. This argument is frivolous because the magistrate judge o n ly made "findings of fact and recommendations" pursuant to § 636(b)(1)(B), a n d the consent of the parties was not required for the district judge to refer the c a s e to a magistrate judge because "the ultimate decision-making authority was r e t a in e d by the district court." Jackson v. Cain, 864 F.2d 1235, 1242 (5th Cir. 1 9 8 9 ). Lineberry argues that the district court had personal jurisdiction over D ir e c to r Lappin because there was an affirmative link between the alleged c o n s t it u t io n a l deprivations and Lappin's approval of unconstitutional policies or p la n s . It is not necessary to detemine if the district court had personal

ju r is d ic tio n over Lappin because Lineberry's conclusional allegations are not s u p p o r t e d by any specific facts showing Lappin's personal involvement in the d a ily operation of the prison or that Lappin personally implemented a deficient p o l ic y resulting in a constitutional violation. Thus, the district court did not err in determining alternatively that Lineberry failed to allege a Bivens claim a g a in s t Lappin. See Cronn v. Buffington, 150 F.3d 538, 544 (5th Cir. 1998). B e c a u s e the district court held that his administrative remedies were r e n d e r e d unavailable, Lineberry is entitled to seek injunctive relief to challenge 2

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th e alleged unconstitutional policies and practices. See Rourke v. Thompson, 11 F .3d 47, 49 (5th Cir. 1993). However, as discussed below, Lineberry has failed to argue facts that support plausible constitutional claims. See In re Katrina C a n a l, 495 F.3d 201, 205 (5th Cir. 2007). L in e b e r r y has not alleged any specific facts showing that the alleged o v e r c r o w d e d and understaffed conditions at the Texarkana facility have placed h im at risk for serious harm or that he has suffered any serious harm to his h e a lt h and safety. Lineberry has not asserted that he has been involved in a fig h t , injured, or developed a medical problem because of the overpopulation of t h e Texarkana facility. He has not asserted facts showing that he was denied m e d ic a l care for a specific injury or illness at Texarkana. Nor has he alleged any s p e c ific facts showing that the Texarkana prison officials are aware of the p r e s e n c e of asbestos in the facility that is presently causing a specific risk of h a r m to Lineberry or any other prisoner. Thus, Lineberry has not alleged facts s h o w in g that there is an excessive risk that he will suffer a serious harm b e c a u se of the prison population or because of dangerous conditions that the p r is o n officials were aware of and failed to address. See Farmer v. Brennan, 511 U .S . 825, 832 (1994); Palmer v. Johnson, 193 F.3d 346, 352 (5th Cir. 1999). Nor h a s he alleged facts showing deliberate indifference to his medical needs. See W ils o n v. Seiter, 501 U.S. 294, 297 (1991). L i n e b e r r y argues for the first time on appeal that the Texarkana prison fa c t o r y , Unicor, is a slave camp that produces dangerous chromium, a chemical c a u s in g cancer and lung disease resulting in premature deaths. The court will n o t consider a newly raised factual claim on appeal. Stewart Glass & Mirror, I n c . v. U.S. Auto Glass Discount Centers, Inc., 200 F.3d 307, 316-17 (5th Cir. 2 0 0 0 ). N o r has Lineberry alleged specific facts showing that his imprisonment w it h illegal aliens and gang members places him at an unnecessary risk of s e r io u s injury or that prison officials are aware of such a risk. Thus, he failed 3

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to allege a claim for failure to protect. See Farmer, 511 U.S. at 832-33, 837. L in e b e r r y argues for the first time in his reply brief that Texarkana houses over 2 0 0 mentally ill prisoners, who have only sporadic monitoring and that these p r is o n e r s sometimes assault other inmates without cause. This court will not c o n s id e r an issue raised for the first time in a reply brief. See United States v. J a c k s o n , 426 F.3d 301, 304 n.2 (5th Cir. 2005). L in e b e r r y makes a conclusional argument that "one of the defendants is g u ilt y of retaliation against him for filing the complaints against the d e f e n d a n t s ." He does not identify the officer who allegedly made the threats. F u r th e r , there is no allegation that an officer committed a retaliatory act as a r e s u lt of Lineberry's attempt to file his grievances. Lineberry's arguments are t o o general and conclusional to show that he had stated a valid constitutional c la im of retaliation. See Bibbs v. Early, 541 F.3d 267, 270 (5th Cir. 2008). L in e b e r r y 's argument that he is forced into servitude in violation of the 1 3 t h and 15th Amendments is also frivolous. The Fifteenth Amendment

a d d r e s s e s voting rights and has no application to a claim of involuntary s e r v it u d e . Lineberry acknowledges that he is paid for his work at the prison, a n d he provides no evidence of a realistic threat of compulsion, an element of an in v o lu n ta r y servitude claim. See Channer v. Hall, 112 F.3d 214, 218 (5th Cir. 1 9 9 7 ). The fact that he may lose good-time credits under prison regulations if h e refuses to work does not support a claim that Lineberry is subject to in v o lu n ta r y servitude in violation of the Thirteenth Amendment. See Watson v. G r a v e s , 909 F.2d 1549, 1552-53 (5th Cir. 1990); 28 C.F.R. §§ 541.13, 545.20. L i n e b e rr y argues that the Bureau of Prison (BOP) policy precluding an in m a te convicted of being a felon in possession of a firearm from completing a d r u g program that would make him eligible for earning a one-year reduction of h is sentence overrides the Constitution. At the time of Lineberry's conviction a n d presently, the applicable regulation excluded inmates convicted of being fe lo n s in possession from early release eligibility based on their participation in 4

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a drug program. See Hadley v. Chapman, 587 F.3d 273-83 (5th Cir. 2009). The c o u r t has rejected arguments that the regulation violated the Equal Protection o r Due Process Clauses. Id. at 280-81. Because Lineberry was sentenced for b e in g a felon in possession of a firearm in July 2003, he was ineligible for early r e le a s e under the rule in effect at the time of his conviction and sentence, and h e remains ineligible for early release under the drug program. See id. at 283. L in eb erry complains about the disciplinary action taken against him while h e was incarcerated at Seagoville and about other conditions at that facility. He d o e s not deny that he raised these claims in a suit that he filed in the Northern D is t r ic t of Texas. The district court did not err in dismissing these claims w it h o u t prejudice because this court has held that it is "malicious" for a prisoner p r o c e e d in g in forma pauperis (IFP) to file a lawsuit that duplicates the a lle g a tio n s of another pending federal action by the same plaintiff. See Pittman v . Moore, 980 F.2d 994, 995 (5th Cir.1993). L in e b e r r y 's appeal is without arguable merit and is thus frivolous. See H o w a r d v. King, 707 F.2d 215, 219-20 (5th Cir.1983). Because the appeal is fr iv o lo u s , it is dismissed. See 5TH CIR. R. 42.2. Based on the dismissal of two of L in e b e r r y 's prior appeals, the court has recently determined that Lineberry is b a r r e d from proceeding IFP in any civil action or appeal filed while he is in c a r c e ra t e d or detained in any facility unless he is under imminent danger of s e r io u s physical injury. See 28 U.S.C. § 1915(g); Lineberry v. Stover, No. 094 0 5 2 2 (5th Cir. Nov. 17, 2009); Lineberry v. United States, No. 09-10360 (5th Cir. N o v . 17, 2009). Lineberry remains subject to the § 1915(g) bar. A P P E A L DISMISSED.

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