     Case: 09-40262     Document: 00511130779          Page: 1    Date Filed: 06/03/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                            June 3, 2010
                                     No. 09-40262
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

JED STEWART LINEBERRY,

                                                   Plaintiff-Appellant

v.

UNITED STATES OF AMERICA; FEDERAL BUREAU OF PRISONS; HARLEY
LAPPIN, Director of Bureau of Prisons; FEDERAL CORRECTIONAL
INSTITUTION TEXARKANA,

                                                   Defendants-Appellees


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                              USDC No. 5:08-CV-72


Before JONES, Chief Judge, and DAVIS and WIENER, Circuit Judges.
PER CURIAM:*
        Jed Stewart Lineberry, federal prisoner # R10296-078, is appealing the
district court’s dismissal with prejudice of his claims, arising during his
incarceration at the Federal Correctional Institution (FCI) in Texarkana, Texas,
in which he sought injunctive relief and damages under the Federal Tort Claims
Act (FTCA) and Bivens v. Six Unknown Named Agents of Narcotics, 403 U.S. 388



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                 No. 09-40262

(1971). Lineberry also appeals the dismissal without prejudice of claims arising
during his incarceration at the FCI, Seagoville, which were dismissed as being
duplicative of claims he raised in a suit pending in the Northern District of
Texas.
      Lineberry has not challenged the dismissal of his claims under the FTCA
for failure to exhaust his administrative remedies. Thus, he has abandoned
those claims on appeal. See Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir.
1999).
      Lineberry complains that he did not consent to the matter being referred
to the magistrate judge and that based on his objections filed pursuant to 28
U.S.C. § 636(c), the magistrate judge lost all jurisdiction to conduct any
proceedings in his case. This argument is frivolous because the magistrate judge
only made “findings of fact and recommendations” pursuant to § 636(b)(1)(B),
and the consent of the parties was not required for the district judge to refer the
case to a magistrate judge because “the ultimate decision-making authority was
retained by the district court.” Jackson v. Cain, 864 F.2d 1235, 1242 (5th Cir.
1989).
      Lineberry argues that the district court had personal jurisdiction over
Director Lappin because there was an affirmative link between the alleged
constitutional deprivations and Lappin’s approval of unconstitutional policies or
plans.   It is not necessary to detemine if the district court had personal
jurisdiction over Lappin because Lineberry’s conclusional allegations are not
supported by any specific facts showing Lappin’s personal involvement in the
daily operation of the prison or that Lappin personally implemented a deficient
policy resulting in a constitutional violation. Thus, the district court did not err
in determining alternatively that Lineberry failed to allege a Bivens claim
against Lappin. See Cronn v. Buffington, 150 F.3d 538, 544 (5th Cir. 1998).
      Because the district court held that his administrative remedies were
rendered unavailable, Lineberry is entitled to seek injunctive relief to challenge

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the alleged unconstitutional policies and practices. See Rourke v. Thompson, 11
F.3d 47, 49 (5th Cir. 1993). However, as discussed below, Lineberry has failed
to argue facts that support plausible constitutional claims. See In re Katrina
Canal, 495 F.3d 201, 205 (5th Cir. 2007).
      Lineberry has not alleged any specific facts showing that the alleged
overcrowded and understaffed conditions at the Texarkana facility have placed
him at risk for serious harm or that he has suffered any serious harm to his
health and safety. Lineberry has not asserted that he has been involved in a
fight, injured, or developed a medical problem because of the overpopulation of
the Texarkana facility. He has not asserted facts showing that he was denied
medical care for a specific injury or illness at Texarkana. Nor has he alleged any
specific facts showing that the Texarkana prison officials are aware of the
presence of asbestos in the facility that is presently causing a specific risk of
harm to Lineberry or any other prisoner. Thus, Lineberry has not alleged facts
showing that there is an excessive risk that he will suffer a serious harm
because of the prison population or because of dangerous conditions that the
prison officials were aware of and failed to address. See Farmer v. Brennan, 511
U.S. 825, 832 (1994); Palmer v. Johnson, 193 F.3d 346, 352 (5th Cir. 1999). Nor
has he alleged facts showing deliberate indifference to his medical needs. See
Wilson v. Seiter, 501 U.S. 294, 297 (1991).
      Lineberry argues for the first time on appeal that the Texarkana prison
factory, Unicor, is a slave camp that produces dangerous chromium, a chemical
causing cancer and lung disease resulting in premature deaths. The court will
not consider a newly raised factual claim on appeal. Stewart Glass & Mirror,
Inc. v. U.S. Auto Glass Discount Centers, Inc., 200 F.3d 307, 316-17 (5th Cir.
2000).
      Nor has Lineberry alleged specific facts showing that his imprisonment
with illegal aliens and gang members places him at an unnecessary risk of
serious injury or that prison officials are aware of such a risk. Thus, he failed

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to allege a claim for failure to protect. See Farmer, 511 U.S. at 832-33, 837.
Lineberry argues for the first time in his reply brief that Texarkana houses over
200 mentally ill prisoners, who have only sporadic monitoring and that these
prisoners sometimes assault other inmates without cause. This court will not
consider an issue raised for the first time in a reply brief. See United States v.
Jackson, 426 F.3d 301, 304 n.2 (5th Cir. 2005).
      Lineberry makes a conclusional argument that “one of the defendants is
guilty of retaliation against him for filing the complaints against the
defendants.” He does not identify the officer who allegedly made the threats.
Further, there is no allegation that an officer committed a retaliatory act as a
result of Lineberry’s attempt to file his grievances. Lineberry’s arguments are
too general and conclusional to show that he had stated a valid constitutional
claim of retaliation. See Bibbs v. Early, 541 F.3d 267, 270 (5th Cir. 2008).
      Lineberry’s argument that he is forced into servitude in violation of the
13th and 15th Amendments is also frivolous.          The Fifteenth Amendment
addresses voting rights and has no application to a claim of involuntary
servitude. Lineberry acknowledges that he is paid for his work at the prison,
and he provides no evidence of a realistic threat of compulsion, an element of an
involuntary servitude claim. See Channer v. Hall, 112 F.3d 214, 218 (5th Cir.
1997). The fact that he may lose good-time credits under prison regulations if
he refuses to work does not support a claim that Lineberry is subject to
involuntary servitude in violation of the Thirteenth Amendment. See Watson v.
Graves, 909 F.2d 1549, 1552-53 (5th Cir. 1990); 28 C.F.R. §§ 541.13, 545.20.
      Lineberry argues that the Bureau of Prison (BOP) policy precluding an
inmate convicted of being a felon in possession of a firearm from completing a
drug program that would make him eligible for earning a one-year reduction of
his sentence overrides the Constitution. At the time of Lineberry’s conviction
and presently, the applicable regulation excluded inmates convicted of being
felons in possession from early release eligibility based on their participation in

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a drug program. See Hadley v. Chapman, 587 F.3d 273-83 (5th Cir. 2009). The
court has rejected arguments that the regulation violated the Equal Protection
or Due Process Clauses. Id. at 280-81. Because Lineberry was sentenced for
being a felon in possession of a firearm in July 2003, he was ineligible for early
release under the rule in effect at the time of his conviction and sentence, and
he remains ineligible for early release under the drug program. See id. at 283.
      Lineberry complains about the disciplinary action taken against him while
he was incarcerated at Seagoville and about other conditions at that facility. He
does not deny that he raised these claims in a suit that he filed in the Northern
District of Texas. The district court did not err in dismissing these claims
without prejudice because this court has held that it is “malicious” for a prisoner
proceeding in forma pauperis (IFP) to file a lawsuit that duplicates the
allegations of another pending federal action by the same plaintiff. See Pittman
v. Moore, 980 F.2d 994, 995 (5th Cir.1993).
      Lineberry’s appeal is without arguable merit and is thus frivolous. See
Howard v. King, 707 F.2d 215, 219-20 (5th Cir.1983). Because the appeal is
frivolous, it is dismissed. See 5 TH C IR. R. 42.2. Based on the dismissal of two of
Lineberry’s prior appeals, the court has recently determined that Lineberry is
barred from proceeding 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); Lineberry v. Stover, No. 09-
40522 (5th Cir. Nov. 17, 2009); Lineberry v. United States, No. 09-10360 (5th Cir.
Nov. 17, 2009). Lineberry remains subject to the § 1915(g) bar.
      APPEAL DISMISSED.




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