                  IN THE UNITED STATES COURT OF APPEALS
                                FOR THE FIFTH CIRCUIT



                                       No. 01-50324
                                     Summary Calendar



SANDIE JOHNSON; ET AL,
                                                            Plaintiffs,
SANDIE JOHNSON,

                                                            Plaintiff-Appellant,

                                             versus
WAYNE SCOTT; ET AL,
                                                            Defendants,
WAYNE SCOTT; PAMELA
WILLIAMS; WARDEN;
SYLVIA NANCE,
                                                            Defendants-Appellees.

                ____________________________________________

                 Appeal from the United States District Court
                     for the Western District of Texas
                          USDC No. W-98-CV-308
            ____________________________________________
                              January 23, 2002
Before POLITZ, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:*




       *
        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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
      Sandie Johnson, Texas state prisoner #680881, appeals the district court’s
dismissal of her 42 U.S.C. § 1983 complaint for failure to state a claim upon which

relief can be granted. She contends that Wayne Scott, the Director of the Texas

Department of Criminal Justice (TDCJ), and Pamela Williams and Sylvia Nance, the
Warden, and the Assistant Warden at the Hobby Unit of TDCJ, acted with

deliberate indifference to her health and well being by failing to respond to her

complaints of mistreatment by prison officers or by implementing policies that were

detrimental to Johnson’s health and safety.
      This court reviews a dismissal under § 1915(e)(2)(B)(ii) (failure to state a
claim) de novo, applying the same standard used to review a dismissal pursuant to
Fed. R. Civ. P. 12(b)(6). Black v. Warren, 134 F.3d 732, 733-34 (5th Cir. 1998).

This court accepts as true all the allegations of the complaint, considering them in
the light most favorable to the plaintiff. Ashe v. Corley, 992 F.2d 540, 544 (5th Cir.

1993). A dismissal for failure to state a claim may be upheld “only if it appears that
no relief could be granted under any set of facts that could be proven consistent with
the allegations.” Moore v. Carwell, 168 F.3d 234, 236 (5th Cir. 1999)(internal

quotation and citation omitted).

      Supervisory officials may be held liable for the conduct of a subordinate only
if they “affirmatively participate in acts that cause constitutional deprivation” or

“implement unconstitutional policies that causally result in plaintiff’s injury.” Baker

v. Putnal, 75 F.3d 190, 199 (5th Cir. 1996).




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      A review of Johnson’s entire complaint does not reveal any allegations of
Director Wayne Scott’s personal involvement in the alleged violations of Johnson’s

constitutional rights. Thus, the district court’s dismissal of the complaint against

Scott for failure to state a claim is AFFIRMED.
      “Searches and seizures conducted on prisoners must be reasonable under all

the facts and circumstances in which they are performed.” Elliott v. Lynn, 38 F.3d

188, 191 (5th Cir. 1994) (internal quotations and citations omitted). There must be

a balance between the legitimate penological need for the search and the invasion of
privacy rights caused by the search. Moore, 168 F.3d at 237. Consideration must
be given to “the scope of the particular intrusion, the manner in which it is
conducted, the justification for initiating it, and the place in which it is conducted.

Id. (internal quotations and citations omitted).
“Under appropriate circumstances, visual body cavity searches of prisoners can be

constitutionally reasonable.” Elliot, 38 F.3d at 191. (emphasis added).
      Johnson’s complaint reflects that the body cavity searches were performed
every time Johnson had non-contact visits and that the searches were conducted in

an insensitive and humiliating manner. The complaint also reflects that strips

searches were conducted outside in view of male officers working in the area and
delivery persons making deliveries to the prison. The complaint does not reflect

whether there was a legitimate penological reason for conducting these searches in

such an intrusive and embarrassing manner. Accepting as true Johnson’s allegations

that the warden and assistant warden were aware of the manner in which the


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searches were being conducted and that the searches served no legitimate security
purpose, Johnson has stated a claim that Williams and Nance either acted with

deliberate indifference to the unreasonable searches or implemented or condoned a

custom or policy of unreasonable body cavity searches.
       Johnson’s allegations that the warden and the assistant warden acted with

deliberate indifference to her complaints of sexual harassment by male prison

officers state an Eighth Amendment claim that Williams and Nance implemented a

policy that was detrimental to Johnson’s safety and well being or acted with
deliberate indifference to her well being by taking no action to curtail the sexual
harassment and assaults. See Downey v. Denton County, Tex., 119 F.3d 381, 385
& n.6, 386 (5th Cir. 1997). The district court erred in dismissing this claim for

failure to state a constitutional violation.
       Johnson’s allegations that the defendants have a policy of not permitting

inmates who are on cell restriction to attend weekly religious services state an
arguable First Amendment claim if Johnson is afforded no other opportunity by
prison officials to exercise her religious freedom. See Beck v. Lynaugh, 842 F.2d

759, 761 (5th Cir. 1988). Thus, the district court erred in dismissing the claim

without obtaining further evidence concerning the policy.
       Johnson’s allegations with respect to the denial of medical care merely reflect

her disagreement with the treatment ordered by the medical staff and do not support

a claim that she was treated with deliberate indifference by the medical staff or the

defendant wardens. See Domino v. Texas Dep’t of Criminal Justice, 239 F.3d 752,


                                               4
756 (5th Cir. 2001). Thus, the district court did not err in dismissing Johnson’s
claim that she was denied medical care for failure to state a claim.

      Johnson’s allegations that she was forced to perform a job by prison

personnel that included duties that she was medically restricted from performing
states an arguable claim of deliberate indifference to her safety if the defendant

wardens knew or should have known that Johnson had been assigned to a job that

she was not physically able to perform without incurring further injury. See Jackson

v. Cain, 864 F.2d 1235, 1246 (5th Cir. 1989). Because Johnson’s allegations reflect
that the defendants acted with deliberate indifference to Johnson’s health in making
her job assignment, the district court erred in dismissing this claim for failure to
state a claim at this stage of the proceeding.

      Johnson alleged that her sleep was interrupted while she was housed at the
Hobby Unit because the lights in the cell area are turned on by prison personnel

intermittently during the night to count the prisoners and to allow inmates with early
work shifts to get ready for work. Her allegations do not reflect that she suffered
any serious physical or psychological injury as a result of this routine or that she

was deprived of a basic necessity of life. See Rhodes v. Chapman, 452 U.S. 337,

347 (1981). Thus, the district court did not err in determining that the allegations of
sleep deprivation failed to state an Eighth Amendment.

      Johnson’s allegations do not support a retaliation claim based on her being

denied access to the courts because she failed to allege any prejudice in a legal




                                            5
proceeding resulting from a delay in receiving her mail, legal materials, or legal
assistance. See Lewis v. Casey, 518 U.S. 343, 351 (1996).

       Johnson’s allegations that the defendants transferred her to different units,

delayed her receipt of personal property, and refused to protect her from other
inmates do not support a retaliation claim because these allegations are conclusional

and do not state a chronology of events from which the alleged retaliatory motive

for the action could be inferred. Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir.

1995). The district court did not err in dismissing the claim for retaliation based on
failure to state a claim.
       The district court’s dismissal of the complaint against TDCJ Director Wayne
Scott is AFFIRMED. The district court’s dismissal of Johnson’s claims that the

defendants Nance and Williams acted with deliberate indifference to Johnson’s
complaints that she was denied adequate medical care, sleep-deprived by the

intermittent lighting of the cells during the night, and that she was subject to
retaliation for filing the instant complaint is AFFIRMED.
       The dismissal of the claims that Wardens Nance and Williams implemented

or condoned polices or acted with deliberate indifference to Johnson’s complaints of

unreasonable body-cavity and strip searches, sexual harassment, inability to exercise
her religion, and assignment to a job contradicted by her medical restrictions is

VACATED, and the case is REMANDED for further consideration of those claims.




                                           6
      Johnson’s motion for the appointment of counsel is DENIED.
See Ulmer v. Chancellor, 691 F.2d 209, 212-12 (5th Cir. 1982).

      AFFIRMED IN PART; VACATED IN PART AND REMANDED;

MOTION DENIED.




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