Clarence Randolph, Jr. v. G. London, et al

Filing

UNPUBLISHED OPINION FILED. [10-30074 Affirmed] Judge: JLW , Judge: RHB , Judge: FPB. Mandate pull date is 11/24/2010 [10-30074]

Clarence Randolph, CaseG.10-30074 alDocument: 00511283046 Jr. v. : London, et

Page: 1 Date Filed: 11/03/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-30074 S u m m a r y Calendar November 3, 2010 Lyle W. Cayce Clerk

C L A R E N C E RANDOLPH, JR., P la in t iff - Appellant v. G . LONDON, Captain; JAMES LEBLANC, Secretary of the Department of C o r r e c t io n s , 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 Middle District of Louisiana U S D C No. 3:09-CV-179

B e fo r e WIENER, BARKSDALE, and BENAVIDES, Circuit Judges. P E R CURIAM:* P r o c e e d in g pro se, Clarence Randolph, Jr., Louisiana prisoner # 480981, a p p e a ls the dismissal of his 42 U.S.C. § 1983 complaint pursuant to Federal R u le s of Civil Procedure 12(b)(6) and 56 and 28 U.S.C. § 1915(e)(2)(B)(i). Randolph contends the district court erred by: (1) granting summary ju d g m e n t on his claims against Secretary LeBlanc based on a lack of exhaustion; (2 ) dismissing his claims against Captain London in his official capacity,

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-30074 Document: 00511283046 Page: 2 Date Filed: 11/03/2010 No. 10-30074 c o n c lu d in g they were not cognizable under § 1983; (3) dismissing his claims a g a in s t Captain London in his individual capacity as frivolous under § 1915(e); a n d (4) denying him relief because defendants failed to comply with discovery orders. A summary judgment is reviewed de novo. E.g., Cousin v. Small, 325 F.3d 6 2 7 , 637 (5th Cir. 2003); Powe v. Ennis, 177 F.3d 393, 394 (5th Cir. 1999) (s t a n d a r d of review for dismissal due to failure to exhaust administrative r e m e d ie s de novo). A motion to dismiss being granted pursuant to Rule 12(b)(6) is likewise reviewed de novo. E.g., Dorsey v. Portfolio Equities, Inc., 540 F.3d 3 3 3 , 338 (5th Cir. 2008). Dismissal of a claim as frivolous is reviewed for abuse o f discretion. E.g., Black v. Warren, 134 F.3d 732, 734 (5th Cir. 1998). Finally, d is c o v e r y rulings are reviewed for abuse of discretion. E.g., Duke v. University o f Texas at El Paso, 729 F.2d 994, 995 (5th Cir. 1984). The district court was correct in concluding Randolph failed to exhaust his a d m in is t r a tiv e remedies concerning Secretary LeBlanc's administrative rulings. Under 42 U.S.C. § 1997e(a), a prisoner must exhaust administrative remedies b e f o r e filing suit. See Jones v. Bock, 549 U.S. 199, 202 (2007). Randolph

p r e s e n t s no evidence supporting his contention there is an exception to this rule for claims based upon a defendant's adverse ruling in the administrative-remedy p r o c e s s . Moreover, Randolph presents no evidence to establish a genuine issue o f material fact on whether he properly exhausted his administrative remedies a g a in s t Secretary LeBlanc. Thus, the district court properly granted summary ju d g m e n t on this ground. See Cousin, 325 F.3d at 637; Powe, 177 F.3d at 394. T h e district court dismissed Randolph's claims against Captain London in h is official capacity, concluding they were not cognizable under § 1983. Because R a n d o lp h does not specifically challenge this basis for the dismissal, any such c la im is deemed abandoned. See Brinkmann v. Dallas County Deputy Sheriff A b n e r , 813 F.2d 744, 748 (5th Cir. 1987).

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Case: 10-30074 Document: 00511283046 Page: 3 Date Filed: 11/03/2010 No. 10-30074 R a n d o lp h 's claims against Captain London in his individual capacity were b a s e d upon allegations of retaliation for filing a grievance. Although Captain L o n d o n did not move for dismissal of Randolph's claims against him in his in d iv id u a l capacity, the district court properly concluded they were frivolous and s h o u ld be dismissed under § 1915(e). First, Randolph's allegations of verbal abuse do not rise to the level of a c o n s t it u t io n a l violation and may not serve as the basis for § 1983 claims. See B e n d e r v. Brumley, 1 F.3d 271, 274 n.4 (5th Cir. 1993). To the extent Randolph a s s e r t s Captain London's profanity rose to the level of retaliation, any such harm is de minimis. See Morris v. Powell, 449 F.3d 682, 686 (5th Cir. 2006). Second, Captain London's alleged failure to follow prison procedures and r e g u la tio n s for Randolph's job transfer is insufficient without additional facts to e s t a b lis h a constitutional violation. See Edwards v. Johnson, 209 F.3d 772, 779 (5 t h Cir. 2000). Third, Randolph fails to present "direct evidence of motivation" or "a c h r o n o lo g y of events from which retaliation may plausibly be inferred" in s u p p o r t of his contention that Captain London transferred Randolph in r e t a lia tio n for his refusal to dismiss a grievance against another prison officer. Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995) (internal quotations and c it a t io n s omitted). Last, the district court concluded Randolph's allegations of denial of m e d ic a l care were not sustainable because there was no evidence Captain L o n d o n was responsible for the quality of Randolph's medical care. Because he d o e s not dispute this assertion, any such contention is therefore abandoned. See B r in k m a n n , 813 F.2d at 748. Moreover, to the extent Randolph contends

C a p t a in London's actions ultimately endangered him and led to his physical in ju r ie s , Randolph has not established deliberate indifference because he has not s h o w n Captain London was "aware of facts from which the inference could be d r a w n that a substantial risk of serious harm exists" or that Captain London 3

Case: 10-30074 Document: 00511283046 Page: 4 Date Filed: 11/03/2010 No. 10-30074 " a ls o dr[e]w the inference" of harm. Farmer v. Brennan, 511 U.S. 825, 837 (1 9 9 4 ). R a n d o lp h makes various allegations that could be construed as assertions the district court erred in denying him relief because defendants failed to comply w it h discovery orders. He contends: he never received copies of his medical r e c o r d s , in violation of the magistrate judge's order under Rule 26(a)(1); and defendants failed to "provide" a request for admissions under Rule 36. In any event, both assertions would fail. With respect to a claimed

v io la t io n of Rule 26(a)(1), seven months passed between filing the discovery o r d e r and issuance of the report and recommendation, and Randolph never filed a motion to compel discovery as advised by the magistrate judge. Additionally, g iv e n the bases for the district court's resolution of his medical-care claim, any e r r o r is harmless because Randolph has not shown the records would have a s s is t e d such a claim. Additionally, Rule 36 does not require a party to request admissions. To t h e extent Randolph asserts defendants failed to respond to his request for a d m is s io n s , he never made one. To the extent he contends defendants failed to r e s p o n d appropriately to his requests for production of documents and in t e r r o g a t o r ie s , his conclusional assertions of error are insufficient to warrant r e lie f. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). AFFIRMED.

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