Neals v. Norwood, 95-10209

• Decision Date: 28 July 1995
• Docket Number: No. 95-10209,95-10209
• Citation: 59 F.3d 530
• Parties: Ricky NEALS, Plaintiff-Appellant, v. Tommy NORWOOD, William L. Stephens, and Ronald Drewry, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 530

59 F.3d 530

Ricky NEALS, Plaintiff-Appellant, v. Tommy NORWOOD, William L. Stephens, and Ronald Drewry, et al., Defendants-Appellees.

No. 95-10209

Summary Calendar.

United States Court of Appeals,

Fifth Circuit.

July 28, 1995.

Ricky Neals, Texas Dept. of Crim., Justice, Institutional Div. Hughes Unit, Gatesville, TX, pro se.

Appeal from the United States District Court For the Northern District of Texas.

Before SMITH, EMILIO M. GARZA and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

Proceeding pro se and in forma pauperis (IFP), Appellant Ricky Neals, (Neals) an inmate in the Texas Department of Criminal Justice--Institutional Division (TDCJ) filed three complaints pursuant to 42 U.S.C. Sec. 1983, alleging that various prison personnel violated his constitutional rights. Because all of the complaints related to the same facts, they were consolidated by the district court. The consolidated case was dismissed pursuant to 28 U.S.C. Sec. 1915(d) based on a finding that Neals's claims were factually and legally frivolous. We affirm.

FACTS

On September 23, 1993, Neals was assaulted and threatened by members of a prison gang, who demanded payment and sexual favors in return for protecting Neals from future harm. Neals brought the threats to the attention of prison officials, including his two case managers, a guard, and a prison classification committee in order to gain protection from future attacks by those inmates. Based on Neals's refusal to be placed in Building Eight of the Robertson Unit where the assault occurred, he was housed in solitary confinement and in a type of confinement referred to as "transit," for about six months, after which he was transferred off the unit entirely. In September 1993, as part of a disciplinary hearing held because of his refusal to be placed in Building Eight, Neals listed the names of two men in that building who had threatened him. Witness statements supported this claim. Those two inmates were transferred out of Building Eight on September 24, 1994.

In response to Neals's complaints regarding classification, the Robertson Unit Classification Committee reviewed the information supplied by Neals on four separate occasions between the date of the assault and his eventual transfer off the unit. At each hearing, Neals was offered the opportunity to name names or give other evidence as to the danger he feared, and in each case, the committee denied his reclassification or transfer due to insufficient evidence to support his claim. Neals also filed 33 grievances during the same time frame, but again prison officials found that he had failed to provide enough information to support his claim of danger.

PROCEDURAL HISTORY

Neals filed three complaints pursuant to 42 U.S.C. Sec. 1983, alleging that he told his two case managers, a guard, and the members of a prison classification committee about the September attack and threats, in order to gain protection from future attacks by those inmates. He stated that he sought to be placed in either protective custody or "safe keeping," or be reclassified out of the general prison population so that he would not be assigned to Building Eight. He argued that the defendants were "deliberately indifferent to [his request for] protective custody, safe keeping or transfer," and that the prison officials "negligently jeopardize[d] the safety of Plaintiff" by not removing him from the general prison population. Because each time he refused placement in Building Eight he was subjected to disciplinary actions, Neals also requested that those be removed from his prison record.

After the three cases were consolidated, the matter was transferred to a magistrate judge pursuant to Neals's written consent. The magistrate judge conducted an evidentiary hearing pursuant to Spears v. McCotter, 766 F.2d 179 (5th Cir.1985) to clarify the substance of Neals's claim. The magistrate judge concluded that, at most, Neals had alleged negligence on the part of defendants. Because negligence will not support Neals's claims under Sec. 1983, the magistrate judge dismissed the consolidated action as frivolous.

DISCUSSION

A. Consent to proceed before the magistrate judge.

On August 25, 1994, Neals signed a consent to proceed before a magistrate judge pursuant to 28 U.S.C. Sec. 636(c). Under Sec. 636(c), a magistrate judge may conduct any or all proceedings in a civil matter and order the entry of judgment in the case...