     Case: 10-10205 Document: 00511276953 Page: 1 Date Filed: 10/27/2010




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

                                                 FILED
                                                                          October 27, 2010
                                     No. 10-10205
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

JERRY DALE WIDNER, also known as Jerry Widner, also known as Beetlejuice,

                                                   Plaintiff-Appellant

v.

ALEXANDRA AGUILAR, Correction Officer III; JOHN BRADLEY, JR.,
Correction Officer III; TIMOTHY WASHINGTON, Sergeant; DENNIS WILSON,
Lieutenant; NFN MCDUFFIE, Warden,

                                                   Defendants-Appellees


                    Appeal from the United States District Court
                         for the Northern District of Texas
                               USDC No. 2:10-CV-10


Before BARKSDALE, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Proceeding pro se and in forma pauperis, Jerry Dale Widner, Texas inmate
# 1348765, appeals the district court’s dismissal of his constitutional-rights
claims, pursuant to §1983, as frivolous and for failure to state a claim under 28
U.S.C. §§ 1915(e)(2)(B)(i) & (ii) and 1915A, and 42 U.S.C. § 1997e(c). Widner
maintains his constitutional rights were violated when: Officer Alexandra



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-10205

Aguilar ordered Widner to walk down stairs while handcuffed and wearing wet
shower shoes; Officer Aguilar used excessive force and verbal threats against
him; Warden McDuffie and other supervisory officials failed to take action in
response to the incident or investigate his grievance complaint; and, officers
confiscated his mail in violation of his right of access to the courts.
      A district court is required to dismiss a complaint filed by a prisoner
proceeding in forma pauperis if the court rules that the action is frivolous,
malicious, or fails to state a claim upon which relief can be granted. 28 U.S.C.
§§ 1915(e)(2)(B)(i)-(ii); see also id. § 1915A (requiring dismissal on the same
grounds of complaints filed by prisoners even if not proceeding in forma
pauperis); 42 U.S.C. § 1997e(c) (same for claims “brought with respect to prison
conditions under section 1983”). Dismissals under §§ 1915(e)(2)(B)(ii), 1915A,
and 1997e(c) are reviewed de novo. Ruiz v. United States, 160 F.3d 273, 275 (5th
Cir. 1998). Under this standard, the plaintiff’s well-pleaded facts are accepted
as true and viewed in the light most favorable to the plaintiff. For the dismissal
under § 1915(e)(2)(B)(i), we review for abuse of discretion the decision that the
action was frivolous or malicious. Id. A complaint if frivolous when it lacks an
arguable basis in law or fact. Hutchins v. McDaniels, 512 F.3d 193, 195 (5th Cir.
2007). Because the district judge referred to all three statutes in its dismissal,
we review the issues de novo. Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir.
2005).
      The district court did not err in dismissing Widner’s claims as frivolous
and for failing to state a claim. To assert a violation against prison officials
under the Eighth Amendment, a prisoner must demonstrate defendants
possessed a “sufficiently culpable state of mind” rising to the level of “deliberate
indifference.” Farmer v. Brennan, 511 U.S. 825, 839 (1994). A prison official
acts with deliberate indifference when he knows and disregards a serious risk
of harm to an inmate’s health or safety. Id. at 837. Although Officer Aguilar’s
conduct could be categorized as negligent, Widner’s complaint failed to allege

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Officer Aguilar was aware of any facts from which an excessive risk of harm
could be drawn, much less that the Officer made such inference. Id. at 839.
Liability for an action pursuant to § 1983 must be based on constitutional
violations, not mere negligence. Daniels v. Williams, 474 U.S. 327, 332-33
(1986).   Thus, Widner’s claim is frivolous and fails to state a deliberate-
indifference claim against Officer Aguilar upon which relief can be granted.
Farmer, 511 U.S. 837.
      Further, Widner’s excessive-force claim is frivolous because Officer Aguilar
did not use physical force against Widner. See Hudson v. McMillian, 503 U.S.
1, 7 (1992). Widner did not allege that Officer Aguilar pushed him or otherwise
physically forced him down the stairs, nor did he allege Officer Aguilar used
excessive force while handcuffing him. Consequently, Widner failed to state a
claim of excessive force.
      Similarly, the district court did not err in dismissing Widner’s allegations
of verbal abuse because mere threatening language does not amount to a
constitutional violation, giving rise to liability for an action pursuant to § 1983.
See Bender v. Brumley, 1 F.3d 271, 274 n.4 (5th Cir. 1993).
      As to defendants Warden McDuffie and other supervisory officials, Widner
maintains they acted with deliberate indifference by taking no action after
learning about the incident. A supervisory official is not liable for the actions of
subordinates on a theory of vicarious liability. Roberts v. City of Shreveport, 397
F.3d 287, 292 (5th Cir. 2005). Widner must demonstrate supervisory officials
were personally involved in the constitutional violation or show a causal link
between their actions and the alleged deprivation. Id. Because Officer Aguilar’s
conduct did not violate Widner’s constitutional rights, Widner failed to allege
any unconstitutional conduct by the supervisory personnel with respect to his
fall down the stairs.
      Insofar as Widner contends the supervisory officers failed to investigate
his complaint, his grievance complaints reflect his allegations were investigated

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                                  No. 10-10205

but no evidence was found to substantiate his allegations. Accordingly, the
district court did not err in dismissing his claims as frivolous. Further, Widner
had no constitutionally protected interest in the investigation and processing of
his grievances. See Geiger v. Jowers, 404 F.3d 371, 373-74 (5th Cir. 2005).
      Finally, Widner maintains supervisory officials confiscated his mail in
violation of his First Amendment right of access to the court.          Brewer v.
Wilkinson, 3 F.3d 816, 821 (5th Cir. 1993). Widner has not alleged any facts
showing he was unable to have his mail sent to the district court or that his legal
position was damaged by any interference with his outgoing mail. See Lewis v.
Casey, 518 U.S. 343, 351-52 (1996); Brewer, 3 F.3d at 825-26 (5th Cir. 1993).
      Because Widner’s constitutional claims were frivolous, the district court
did not err in dismissing his claims with prejudice, see Marts v. Hines, 117 F.3d
1504, 1506 (5th Cir. 1997) (en banc); the district court erred, however, in
dismissing his complaint for failure to state a claim without prejudice. Accepting
Widner’s allegations as true and viewing them in the light most favorable to his
case, he fails to state an actionable claim for relief.     In re Katrina Canal
Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007). Widner had a fair opportunity
to present his best case and did not allege facts that would, if proved true,
warrant the relief he seeks. Accordingly, his dismissal for failure to state a
claim is modified to a dismissal with prejudice. See Marts, 117 F.3d at 1505-06.
      The district court’s dismissal of Widner’s complaint as frivolous constitutes
a strike under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383,
387-88 (5th Cir. 1996). Widner is warned that if he accumulates three strikes,
he will not be permitted to proceed in forma pauperis in any civil action or
appeal while he is incarcerated or detained in any facility, unless he is under
imminent danger of serious physical injury. 28 U.S.C. § 1915(g).
      The judgement of the district court is affirmed.
      AFFIRMED AS MODIFIED; SANCTION WARNING ISSUED.



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