Billy Hale v. Eddie Williams, et al

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Billy Hale v. Eddie Williams, et al

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Case: 10-10144

Document: 00511193027

Page: 1

Date Filed: 08/03/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-10144 S u m m a r y Calendar August 3, 2010 Lyle W. Cayce Clerk

B I L L Y FRANK HALE, P la in t iff - Appellant v. E D D I E C. WILLIAMS; TOMMY NORWOOD; JAMES D. ANDERS; LEANN S. PENA, D e fe n d a n t s - Appellees

A p p e a l from the United States District Court fo r the Northern District of Texas U S D C No. 7:07-CV-115

B e fo r e DAVIS, SMITH, and SOUTHWICK, Circuit Judges. P E R CURIAM:* B illy Frank Hale, Texas prisoner # 693364, proceeding pro se, moves for le a v e to proceed in forma pauperis (IFP) in an appeal from the district court's s u m m a r y judgment dismissing his 42 U.S.C. § 1983 action as frivolous. Hale's I F P motion is a challenge to the district court's certification that his appeal is n o t taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Case: 10-10144

Document: 00511193027 Page: 2 No. 10-10144

Date Filed: 08/03/2010

H a le contends that the defendant, Leann Pena, caused his prison craft s h o p privileges to be revoked in retaliation for his complaints against her. Prison officials may not retaliate against an inmate for exercising the First A m e n d m e n t right to complain to a supervisor about a guard's misconduct. Woods v. Smith, 60 F.3d 1161, 1164 (5th Cir. 1995). However, retaliation claims a r e "regarded with skepticism" in order to avoid embroiling federal courts in e v e r y disciplinary act that occurs in a prison. Id. at 1166. Hale must be able e it h e r to produce direct evidence of retaliatory motivation or to show a " c h r o n o lo g y of events from which retaliation may plausibly be inferred." See id. Summary judgment is proper if Pena has demonstrated that there are no g e n u in e issues of material fact and that she is entitled to a judgment as a matter o f law. See id. at 1164; FED. R. CIV. P. 56(c)(2)). A factual issue is not "material" u n le s s its resolution would affect the outcome of the suit under the applicable la w . See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). I n order to show a contested issue of fact, Hale argues that the stated r e a s o n for the revocation was invalid because he was not among the least active p r is o n e r s in the craft shop as Pena and other witnesses asserted. Hale's

e v id e n c e does not show his craft shop activity in relation to that of other p r is o n e r s . He fails to identify a contested issue of fact that is material to his r e t a lia tio n claim. See Woods, 60 F.3d at 1164. More significantly, he does not s h o w any triable issue concerning a retaliatory motive because he fails to refute s u m m a r y judgment evidence establishing that Pena was not even aware of his in fo r m a l complaint against her at the time of the alleged retaliation. H a le fails to show that he will present a nonfrivolous issue on appeal. See H o w a r d v. King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly, his motion for le a v e to proceed IFP is DENIED, and the appeal is DISMISSED as frivolous. See Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2. T h is dismissal and the dismissal by the district court each count as one s t r ik e under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 2

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Document: 00511193027 Page: 3 No. 10-10144

Date Filed: 08/03/2010

3 8 7 -8 8 (5th Cir. 1996). Hale is therefore WARNED that if he accumulates three s t r ik e s under Section 1915(g), he will not be able to proceed IFP in any civil a c t io n or appeal filed while he is incarcerated or detained in any facility unless h e is under imminent danger of serious physical injury. See § 1915(g). I F P MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING IS S U E D .

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