DAVID WAYNE MCWHERTER, Plaintiff-Appellant, v. J.A. COLLINS, ET AL., Defendants-Appellees.
No. 95-20347
United States Court of Appeals, Fifth Circuit
October 30, 1995
Before KING, SMITH and BENAVIDES, Circuit Judges.
Summary Calendar
Texas prisoner David Wayne McWherter appeals the dismissal of his civil rights complaint alleging that seven prison officials retaliated against him for using the prison grievance system. We affirm.
Following the filing of McWherter‘s complaint, IFP status was granted and six of the seven defendants were served. Officer S.
Failure to serve
McWherter argues that his claim against Lane should not have been dismissed. Service, McWherter insists, is the U.S. Marshal‘s responsibility. McWherter also argues that a dismissal for failure to serve should be without, not with, prejudice.
A district court enjoys broad discretion in determining whether to dismiss an action for failure of service. George v. United States Dep‘t of Labor, O.S.H.A., 788 F.2d 1115, 1116 (5th Cir. 1986). This court reviews such a dismissal for abuse of discretion. Systems Signs Supplies v. United States Dep‘t of Justice, 903 F.2d 1011, 1013 (5th Cir. 1990).
In the original complaint, which he filed in 1992, McWherter identified Lane as S. Lane, CO III, Wynne Unit, Hunstville, Texas 77349. The 1994 order directing the U.S. Marshal to serve the
In his notice of appeal, McWherter stated that, after the Spears hearing, he merely waited for the marshals to serve Lane. He asserted that he rightfully expected them to serve her.
The Federal Rules of Civil Procedure state that the “plaintiff is responsible for service . . . .”
“While . . . incarcerated plaintiffs proceeding in forma pauperis may rely on service by the U.S. Marshals, a plaintiff may not remain silent and do nothing to effectuate such service.” Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir. 1987). “At a minimum, a plaintiff should request service upon the appropriate defendant and attempt to remedy any apparent service defects of which a plaintiff has knowledge.” Id.
The record does not show when McWherter first knew that there was a problem in serving Lane. But at the latest, he became aware at the Spears hearing that there was a problem. He then had 45 days in which to act. Knowing that there was a problem, he remained silent and did nothing to effectuate service. This he may
The Federal Rules of Civil Procedure require a dismissal for failure to serve to be without prejudice.
McWherter filed his complaint in August 1992, alleging acts occurring from January to May 1992. The dismissal with prejudice came in March 1995, when the two-year Texas statute of limitations would have barred a re-filed action. See
§ 1915(d)
McWherter argues that his claims of retaliation for his use of the grievance procedure are not frivolous because all of the defendants had personal involvement in the retaliation. Additionally, McWherter argues that the disciplinary hearing that one defendant conducted was constitutionally infirm.
An IFP plaintiff‘s claim that has no arguable basis in law or fact may be dismissed as frivolous.
The gravamen of McWherter‘s complaint is that the defendants
“[A] prison official may not retaliate against or harass an inmate . . . for complaining to a supervisor about a guard‘s misconduct.” Woods v. Smith, 60 F.3d 1161, 1164 (5th Cir. 1995). “An action motivated by retaliation for the exercise of a constitutionally protected right is actionable, even if the act, when taken for a different reason, might have been legitimate.” Id. at 1165.
“To state a claim of retaliation an inmate must allege the violation of a specific constitutional right and be prepared to establish that but for the retaliatory motive the complained of incident . . . would not have occurred.” Woods, 60 F.3d at 1166. “A plaintiff may not, however, plead merely conclusory allegations to successfully state a section 1983 claim, but must instead set forth specific facts which, if proven, would warrant the relief sought.” Arnaud v. Odom, 870 F.2d 304, 307 (5th Cir. 1989), cert. denied, 493 U.S. 855 (1989). Once given an opportunity to plead his best case, even a pro se plaintiff must plead specific facts to support his conclusions. Jacquez v. Procunier, 801 F.2d 789, 793 (5th Cir. 1986).
We have reviewed McWherter‘s complaint, as fleshed out by his responses to the court‘s questionnaire and by the Spears hearing.
Furthermore, the supervisory personnel -- Collins, Peterson, and Grissom -- may not be liable without their personal involvement or their implementation of a constitutionally deficient policy. Thompkins v. Belt, 828 F.2d 298, 303-04 (5th Cir. 1987). McWherter‘s conclusional allegations do not meet that high standard.
Turning to McWherter‘s allegations regarding the disciplinary procedure, McWherter argues that his claim of an improper disciplinary procedure was not frivolous because the case was never investigated, he was never interviewed, he was deprived of good time without due process, and he was not provided a written statement of the facts upon which the disciplinary officer relied and of the reasons for the officer‘s conclusions. The disciplinary officer should have accepted written evidence against Lane, McWherter argues. He also says that a single disciplinary officer should not have conducted the hearing.
In a major disciplinary proceeding, unless a security risk would be created, prison officials must give an inmate 24 hours written notice of a hearing and of the charges against him, an opportunity to present evidence, and a written statement by the
In his responses to the court‘s questionnaire, McWherter stated that he had notice, an opportunity to present evidence, and a copy of factual findings. Though these responses show that the Wolff requirements were met, McWherter argues that the findings of fact that he received were inadequate and that he should have had a hearing before more than one officer.
McWherter argues that the factual findings were inadequate because they merely stated, “Masturbating and did not stop masturbating when ordered to.” Wolff did not prescribe a level of detail for the written findings. It explained that the statement should allow for review, should preclude a misunderstanding, and should ensure that officials acted fairly. Wolff, 418 U.S. at 565. As McWherter alleged, the findings comport with the charges. McWherter has not explained how the simple statement failed to satisfy the reasons that Wolff gave for requiring the statement.
A disciplinary committee composed of three prison officers was at issue in Wolff. Wolff, 418 U.S. at 540. The Supreme Court delineated the requirements for a major disciplinary proceeding in the context of that case. Id. at 563-68. The Supreme Court, however, did not require prison officials to provide a hearing before more than one officer. Id. In an unpublished opinion, this court has held, “[T]here is no requirement that there be more than
Outside of the foregoing procedural requirements, a federal court‘s review of a state prison disciplinary proceeding does not go beyond determining if it was arbitrary and capricious. Stewart v. Thigpen, 730 F.2d 1002, 1005-06 (5th Cir. 1984). When a disciplinary board‘s factual findings are challenged, a federal court‘s review is limited to determining whether the findings are supported by any evidence at all. Id.
Though McWherter disputes Lane‘s account of events, McWherter‘s allegations reveal that Lane made the charges and that Boyd believed her. The procedural requirements were met. Lane‘s charges are some evidence. This court‘s review is at an end. The dismissal for frivolousness was not an abuse of discretion.
Sanction warning
McWherter said at the Spears hearing that he had another suit pending at that time. The instant complaint and appeal lack merit. McWherter is hereby warned that frivolous litigation in the future will result in sanctions. See, e.g., Smith v. McCleod, 946 F.2d 417, 418 (5th Cir. 1991); Jackson v. Carpenter, 921 F.2d 68, 69 (5th Cir. 1991).
AFFIRMED.