Comeaux v. Mackwani

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Arcade Joseph Comeaux, Jr., Plaintiff-Appellant, v. Rick Thaler, Defendant-Appellee.

No. 03-20776.

United States Court of Appeals, Fifth Circuit.

Decided March 23, 2005.

345 F.3d 909

Summary Calendar.

mates convicted prior to September 1999, like Brown, to refuse such collection. Brown asserted that he eventually agreed to provide a sample, but only after defendants continued to threaten him verbally.

This court has held that a Texas statute, Tex. Gov‘t Code § 411.148, which provides for the collection of blood samples from felons for registration in a DNA databank, does not violate those felons’ Fourth Amendment right to privacy.

Velasquez v. Woods, 329 F.3d 420, 421 (5th Cir. 2003). Because the Texas statute is nearly identical to the Louisiana statute at issue here, Brown‘s challenge to the statute is frivolous. Insofar as Brown is arguing that he is not challenging the constitutionality of La. Rev. Stat. Ann. § 15.609 but that its incorrect application to him violated his due process rights, his claim is likewise frivolous because a mere violation of state law does not state a constitutional claim under 42 U.S.C. § 1983.

Giovanni v. Lynn, 48 F.3d 908, 912-13 (5th Cir. 1995). Brown‘s due process challenge to his disciplinary penalties is frivolous because those penalties did not amount to an “atypical and significant hardship ... in relation to the ordinary incidents of prison life.”

Sandin v. Conner, 515 U.S. 472, 484, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995);

Pichardo v. Kinker, 73 F.3d 612, 612 (5th Cir. 1996). Because Brown has not identified a specific constitutional right that the defendants violated, he failed to state a cognizable retaliation claim.

Jones v. Greninger, 188 F.3d 322, 324-25 (5th Cir. 1999). Finally, Brown‘s allegation of verbal threats did not state a constitutional claim.

Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997);

McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir. 1983). The court did not abuse its discretion in dismissing the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B).

Taylor v. Johnson, 257 F.3d 470, 472 (5th Cir. 2001).

Brown‘s appeal is without arguable merit. See

Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly, we DISMISS the appeal as frivolous. 5th Cir. R. 42.2. The dismissal of the instant appeal as frivolous counts as a strike for purposes of the three-strikes provision, 28 U.S.C. § 1915(g), as does the district court‘s dismissal. See

Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). In 2000, the district court dismissed as frivolous a prior 42 U.S.C. § 1983 complaint by Brown.

Brown v. White, No. 2:00-CV-119 (W.D. La. July, 18, 2000). Brown has thus accumulated three strikes. Accordingly, we CAUTION Brown that hereafter he may not proceed IFP 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 28 U.S.C. § 1915(g).

APPEAL DISMISSED; SANCTION WARNING ISSUED.

Arcade Joseph Comeaux, Jr, pro se.

Timothy J. Flocos, Austin, TX, for Defendant-Appellee.

Before REAVLEY, JOLLY, and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:^*

Arcade Joseph Comeaux, Jr., Texas prisoner # 841331, appeals the district court‘s grant of summary judgment and dismissal with prejudice of his 42 U.S.C. § 1983 complaint in Cause No. 4:00-CV-3812. We review the district court‘s grant of summary judgment in favor of Dr. Naik and the dismissal of Comeaux‘s claims against the remaining defendants de novo. See

Cousin v. Small, 325 F.3d 627, 637 (5th Cir.), cert. denied,

540 U.S. 826, 124 S. Ct. 181, 157 L. Ed. 2d 48 (2003);

Ruiz v. United States, 160 F.3d 273, 275 (5th Cir. 1998). As Comeaux has appealed only the denial of his claims relating to his alleged need for physical therapy and for the denial of medical care in connection with his fall on October 16, 2000, all of his other claims alleging the denial of necessary medical care have been abandoned. See

Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).

After reviewing the record and the briefs submitted by the parties, we conclude that the district court did not err in granting Dr. Naik‘s summary judgment motion and in denying Comeaux‘s summary judgment motion. See

Hare v. City of Corinth, 135 F.3d 320, 325-26 (5th Cir. 1998);

Farmer v. Brennan, 511 U.S. 825, 832, 837, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994). Moreover, the record does not support Comeaux‘s allegations that Dr. Naik provided incomplete and incompetent summary judgment evidence; that the district court improperly considered Comeaux‘s criminal history and the security concern he presented in the prison; that the district court improperly considered medical records that were presented during the Spears** hearing; that Comeaux‘s due process rights were violated because he did not have access to certain records during the Spears hearing; and that Comeaux‘s due process rights were violated because he was not aware during the Spears hearing that the instant case would be consolidated with Cause No. 4:01-CV-1411. We also conclude that the district court did not abuse its discretion in denying Comeaux‘s motion to compel discovery. See

Mayo v. Tri-Bell Indus., Inc., 787 F.2d 1007, 1012 (5th Cir. 1986).

We do conclude, however, that the district court abused its discretion in consolidating Comeaux v. Mackawani, Cause No. 4:00-CV-3812, with Comeaux v. Thaler, 4:01-CV-1411. See

Dillard v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 961 F.2d 1148, 1161 (5th Cir. 1992). With the exception of the fact that Comeaux raised Eighth Amendment claims in both civil rights suits, the suits did not involve common questions of law and fact. See Fed. R. Civ. P. 42(a).

In addition, while the district court was correct that Warden Rick Thaler, a defendant in Cause No. 4:01-CV-1411, could not be held vicariously liable for the actions of his employees, it erred in finding that the warden was sued only in his supervisory capacity. Comeaux‘s complaint, liberally construed, alleged that Warden Thaler had personal knowledge that the Estelle High Security Prison Unit was not equipped to meet Comeaux‘s special needs and that the failure to meet his special needs would result in the denial to Comeaux of the basic necessities of life. In addition, contrary to the district court‘s finding, there is no indication that the remaining defendants named in Cause No. 4:01-CV-1411 were following the orders of Dr. Naik. Accordingly, we VACATE the district court‘s consolidation of Cause Nos. 4:00-CV-3812 and 4:01-CV-1411 and the dismissal of the defendants named in Cause No. 4:01-CV-1411. Cause No. 4:01-CV-1411 is REMANDED to the district court for further proceedings. Comeaux‘s motion for appointment of counsel on appeal is DENIED.

AFFIRMED IN PART (CAUSE NO. 4:00-CV-3812); VACATED AND REMANDED IN PART (Cause No. 4:01-CV-1411); MOTION FOR APPOINTMENT OF COUNSEL DENIED.

Notes

*

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.

**

Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).

Case Details

Case Name: Comeaux v. Mackwani

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Mar 23, 2005

Citation: 124 F. App'x 909

Docket Number: 03-20776

Court Abbreviation: 5th Cir.