     Case: 13-10863      Document: 00512744329         Page: 1    Date Filed: 08/25/2014




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

                                                                                  FILED
                                    No. 13-10863                            August 25, 2014
                                  Summary Calendar
                                                                             Lyle W. Cayce
                                                                                  Clerk
ENZIO AUGUSTINO POWELL, also known as Enzio A. Powell, II,

                                                 Plaintiff-Appellant

v.

J. MARTINEZ, Officer; D. OWENS, Officer; R. SOTO, Disciplinary Captain;
JOE PONDER, Sergeant; NFN KING, Sergeant; W. GING, Substitute
Counsel; L. BERGER, Assistant Warden; J.H. Adams, Senior Warden; D.
ADAMS, Sergeant,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 2:10-CV-193


Before KING, JOLLY, and PRADO, Circuit Judges.
PER CURIAM: *
       Enzio Augustino Powell, Texas prisoner # 1150991, proceeding pro se
and in forma pauperis (IFP), filed a civil rights complaint against various
prison officials. He alleged that the defendants had conspired to retaliate
against him because he filed a grievance in March 2010 against Officer J.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-10863

Martinez when Martinez denied Powell’s recreation period. He further alleged
that retaliation took place in June 2010 when Powell’s cell was searched, his
property was torn up, his appliances were confiscated, and he received a
disciplinary charge for possessing forged property papers. After conducting a
hearing pursuant to Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985), and
before service of process upon the defendants, the district court dismissed the
complaint pursuant to 28 U.S.C. §§ 1915A and 1915(e)(2) as frivolous and for
failure to state a claim. Powell now appeals.
      A prisoner’s civil rights complaint shall be dismissed if, inter alia, it is
frivolous or fails to state a claim on which relief can be granted. § 1915A(b)(1);
see Morris v. McAllester, 702 F.3d 187, 189 (5th Cir. 2012), cert. denied, 134 S.
Ct. 80 (2013). Because the district court dismissed the complaint as both
frivolous and for failure to state a claim, we will review the matter de novo, see
Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005), using the same standard
we apply when reviewing the grant of a motion to dismiss under Federal Rule
of Civil Procedure 12(b)(6), DeMoss v. Crain, 636 F.3d 145, 152 (5th Cir. 2011).
Under that standard, we “will uphold a dismissal if, taking the plaintiff’s
allegations as true, it appears that no relief could be granted based on the
plaintiff’s alleged facts.” Samford v. Dretke, 562 F.3d 674, 678 (5th Cir. 2009)
(internal quotation marks and citation omitted).
§ 1983 claims
      Conspiracy
      Powell contends that Martinez conspired with all of the other defendants
to retaliate against him and committed retaliatory adverse acts in furtherance
of that conspiracy. Powell asserted in the district court that the defendants
had admitted the conspiracy to his cellmate, but his cellmate’s declaration
made under penalty of perjury did not support Powell’s assertion. Powell’s



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“mere conclusory allegations of conspiracy cannot, absent reference to material
facts, state a substantial claim of federal conspiracy.” McAfee v. 5th Circuit
Judges, 884 F.2d 221, 222 (5th Cir. 1989) (internal quotation marks and
citation omitted).
      Retaliation
      To state a valid claim for retaliation under § 1983, a prisoner must allege
(1) his invocation of a specific constitutional right, (2) the defendant’s intent to
retaliate against the prisoner due to his exercising that right, (3) a retaliatory
adverse act, and (4) a causal connection. Jones v. Greninger, 188 F.3d 322,
324-25 (5th Cir. 1999). Powell has a right to file grievances without being
harassed or retaliated against for doing so. See Morris v. Powell, 449 F.3d 682,
684 (5th Cir. 2006).     Additionally, it may be plausibly inferred from his
allegations, taken as true, that Martinez intended to retaliate against Powell
for filing the March 2010 grievance against him. With respect to retaliatory
adverse acts, Powell alleged, at best, that Martinez was present for some
portion of the June 2010 cell search and “tore up” some of Powell’s property.
Powell clarified at the Spears hearing, however, that the only property about
which he was suing was his confiscated appliances. As Powell’s allegations do
not indicate that Martinez ordered the cell search, confiscated his appliances,
or wrote the disciplinary report, he has not alleged facts showing that the acts
he complained of would not have occurred absent Martinez’s retaliatory
motive. See Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995). Powell thus
failed to state a claim of retaliation under § 1983 against Martinez. See Jones,
188 F.3d at 324-25.
      We turn now to Powell’s retaliation claim against all of the other
defendants. Powell’s pleadings, when stripped of any conclusional allegations
of conspiracy, do not allege facts from which it may plausibly be inferred that



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                                  No. 13-10863

any of the defendants other than Martinez had any intent to retaliate against
Powell for filing the grievance against Martinez. Powell thus failed to state a
claim of retaliation against those other defendants. See Jones, 188 F.3d at 324-
25. Additionally, “[u]nder § 1983, . . . a government official can be held liable
only for his own misconduct.” Carnaby v. City of Houston, 636 F.3d 183, 189
(5th Cir. 2011). Because a § 1983 claim requires personal liability, Powell was
unable to state any valid constitutional claims under a theory of vicarious
liability based the supervisory role of any of the defendants. See id.
      Malicious prosecution
      The district court correctly found that we do not recognize any
freestanding claim under § 1983 for malicious prosecution. See Castellano v.
Fragozo, 352 F.3d 939, 945 (5th Cir. 2003). Powell contends that his malicious
prosecution claim is not freestanding and is related to his retaliation claim. As
Powell has failed to state claim of retaliation, it follows that he cannot state a
claim for malicious prosecution that is dependent upon his retaliation claim.
Preliminary injunction
      After Powell filed his complaint, he sought an emergency restraining
order and a preliminary injunction, alleging that the defendants continued to
harass him and retaliate against him because he would not drop the instant
action against them. The district court denied the motion.
      We lack jurisdiction to consider an appeal from the denial of a temporary
restraining order. See Faulder v. Johnson, 178 F.3d 741, 742 (5th Cir. 1999).
We review the denial of a motion for a preliminary injunction only for an abuse
of discretion. See Byrum v. Landreth, 566 F.3d 442, 445 (5th Cir. 2009).
Powell’s generalized complaint about common practices by prison personnel
does not show that the district court abused its discretion by denying Powell’s




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request for preliminary injunctive relief in this particular case. See Byrum,
566 F.3d at 445.
Conclusion
      Powell has not shown that the district court erred in determining that
he failed to state a claim for retaliation, conspiracy, or malicious prosecution
against any of the defendants or that he could not proceed under a theory of
respondeat superior in a § 1983 proceeding. Nor has he shown that the district
court abused its discretion in denying his motion for preliminary injunctive
relief. Accordingly, the judgment of the district court is AFFIRMED.
      The district court’s dismissal of Powell’s complaint as frivolous and for
failure to state a claim counts as a strike for purposes of § 1915(g). See
Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).             Powell is
WARNED that if accumulates three such strikes he will no longer be able to
proceed 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 § 1915(g).




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