Opinion
Case No. 1:01-CV-193-BG
October 17, 2002
ORDER OF DISMISSAL
The Plaintiff Kieron Derek Penigar filed this civil rights action on October 12, 2001, against Kevin Defoor, Pawanka A. Robinson, Patrick W. Wells, and James Duke, complaining that Officer Defoor told Offenders Robinson and Wells that Penigar was a pedophile and that Robinson and Wells then began to threaten to rape and kill Penigar. He claims that he has been subjected by retaliation by Defoor and other officers not named in this complaint. On October 24, 2001, U.S. District Judge Sam R. Cummings dismissed Penigar's claims against Defendants Robinson, Wells, and Duke, with prejudice as frivolous. Therefore, Defoor is the only defendant remaining in this action.
On January 8, 2002, the court conducted a hearing pursuant to Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985). After reviewing the complaint, Penigar's testimony at the Spears hearing, and the authenticated records from TDCJ-ID, the court is of the opinion that this case should be and is hereby dismissed with prejudice.
Penigar complains that on February 26, 2001, Defoor told other inmates that Penigar is a pedophile and that Defoor knows or should have known that disseminating that information places Penigar at risk for assault. In the Step 1 grievance attached to his complaint, Penigar states that Officer Defoor came and sat in the dayroom cell and told inmates Pawanka A. Robinson (aka Big Beaumont) and Patrick Wells (aka Jughead), who are members of a gang known as the Rolling Sixties Crip Gang, that Penigar was a pedophile. Penigar complains that, upon hearing this information, Robinson and Wells began to threaten Penigar's life. He complains that he previously filed grievances against Defoor for this same misconduct but he continues to act with impunity by the administration. Penigar complains that Defoor and other officers are hostile toward him and are trying to get other offenders to physically harm Penigar. He complains that Defoor's actions are in retaliation for Penigar's use of the grievance system.
At the Spears hearing, Penigar testified that when Defoor told the two inmates that Penigar was a pedophile, Defoor was in the dayroom but Penigar and the other inmates were in their cells. Penigar testified that he had not suffered any physical injuries but he has suffered stress, depression, and loss of hair. At the time Defoor disseminated the information, Penigar was housed in administrative segregation, which restricts his access to other inmates and their access to him. Penigar claims that the officers have jeopardized his right to participate in educational programs and also have placed his life at risk. He testified, "I might have to hurt or kill someone." He asks the court to remove him from the unit and place him in protective custody so that he does not have to worry about threats.
At a prior Spears hearing in a suit against Officer Quinney, Penigar testified that Quinney had told other inmates that Penigar had raped an eight-year-old. In that case, Penigar v. Duke, No. 1:01-CV-066-BG (ND. Tex. May 9, 2002) (Order Dismissing Case With Prejudice), the court recognized that the allegations that Officer Quinney told an inmate, Hoffman, that Penigar was a child rapist showed a disregard for Penigar's safety within the prison but Penigar failed to allege that he faced a substantial risk of serious bodily injury from Hoffman's threats because Penigar had been transferred away from Hoffman and was confined to administrative segregation where he was escorted to and from his cell by guards and did not attend recreation with other prisoners. That case was also dismissed on the ground that the damages which Penigar sought — for emotional injuries as a result of the verbal threats — were not recoverable under the Prison Litigation Refonn Act without a showing of a specific physical injury.
The same reasoning applies to the case at hand. Penigar testified at the Spears hearing that he had not suffered any physical injuries. Under the Prison Litigation Reform Act, a prisoner may not recover for emotional or mental damages without a "prior showing of physical injury." 42 U.S.C. § 1997e(e); see Harper v. Showers, 174 F.3d 716, 719 (5th Cir. 1999).
Penigar's request that the court assign him to protective custody also must be denied. A prison inmate does not have a protectable liberty or property interest in his custodial classification, and his disagreement with his classification by prison authorities is insufficient to establish a violation of his constitutional rights. See Wilson v. Budney, 976 F.2d 957 (5th Cir. 1992).
Penigar's claim that Defoor retaliated against him also must be dismissed. "To prevail on a claim of retaliation, a prisoner must establish: (1) a specific constitutional right; (2) the defendant's intent to retaliate against the prisoner for his or her exercise of that right; (3) a retaliatory adverse act; and (4) causation." McDonald v. Steward, 132 F.3d 225, 231 (5th Cir. 1998). Although Penigar complains that Defoor acted in retaliation for Penigar's use of the grievance system, he does not meet any of the requirements to state such a claim.
It is, therefore, ordered that this civil rights complaint be dismissed with prejudice as frivolous pursuant to 28 U.S.C. § 1915 (e)(2)(B) 1915A(b)(1) and 42 U.S.C. § 1997e(c)(1)-(2); see Berry v. Brady, 192 F.3d 504, 507 509 (5th Cir. 1999).
Any pending motions are denied as moot.
This dismissal shall count as a qualifying dismissal under 28 U.S.C. § 1915 (g) and Adepegba v. Hammons, 103 F.3d 383 (5th Cir. 1996). Dismissal of this action does not release Penigar or the institution where he is incarcerated from the obligation to pay any filing fee previously imposed. See Williams v. Roberts, 116 F.3d 1126, 1128 (5th Cir. 1997).
A copy of this order shall be mailed to all parties appearing pro se, to any attorney of record, to the Office of General Counsel, TDCJ-ID, Litigation Support, P. O. Box 13084, Austin, Texas 78711, and to TDCJ Local Funds Division, P. O. Box 629, Huntsville, Texas 77342-0629 by first class mail.
Judgment shall be entered accordingly.
JUDGMENT
This date an Order of Dismissal having been entered,
It is Ordered and Adjudged
that the Plaintiff take nothing and that the action be dismissed on the merits with prejudice as frivolous.