     Case: 12-20581       Document: 00512239228         Page: 1     Date Filed: 05/13/2013




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

                                                                            FILED
                                                                           May 13, 2013
                                     No. 12-20581
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

JACK E. THORNTON,

                                                  Plaintiff-Appellant

v.

TERRILYN L. MERCHANT, Craft Shop Supervisor; RODNEY BLAKEY, TDCJ
# 473072; HAROLD BURKETT, TDCJ # 539551; OTHER UNKNOWN
INMATES,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:10-CV-616


Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
       Jack E. Thornton, Texas prisoner # 752002, appeals the district court’s
grant of summary judgment denying his retaliation claim against Officer
Terrilyn Merchant, the craft shop supervisor, and the court’s summary dismissal
of his remaining claims as frivolous and for failure to state a claim. The
undisputed evidence showed that Thornton’s craft shop privileges were revoked


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-20581

because he was convicted of a disciplinary violation, that the Texas Department
of Criminal Justice (TDCJ) rules required him to wait six months before he could
reapply for craft shop privileges, that Thornton was placed on the waiting list
when he became eligible again, and that he was subsequently removed from the
waiting list because he was convicted of another disciplinary violation. The
Warden, not Officer Merchant, makes the final determination concerning who
is qualified to obtain craft shop privileges. Because Officer Merchant did not
have the authority to and did not make the decision concerning whether
Thornton’s craft shop privileges should be reinstated, the district court did not
err in determining that Thornton had failed to allege a chronology of events from
which retaliation may plausibly be inferred. See Woods v. Smith, 60 F.3d 1161,
1166 (5th Cir. 1995).
      According to Thornton, the district court also erred in dismissing his claim
concerning the allegedly false disciplinary charge as duplicative and malicious,
arguing that this claim was never litigated on the merits. Thornton raised this
claim in a previous § 1983 action; the district court summarily dismissed his
complaint as frivolous under 28 U.S.C. § 1915A, and we dismissed his appeal as
frivolous. See Thornton v. Merchant, No. H-08-2386 (S.D. Tex. Sept. 30, 2008);
Thornton v. Merchant, No. 08-20768 (5th Cir. July 10, 2009). The district court,
therefore, did not err in dismissing this claim as duplicative. See Bailey v.
Johnson, 846 F.2d 1019, 1021 (5th Cir. 1998).
      Next, Thornton contends that the district court erred in dismissing his
claim concerning the alleged theft of some of his craft shop tools by two inmates
and the destruction of his remaining craft shop tools after he failed to make
arrangements to dispose of them. Thornton has not shown that the alleged theft
and destruction of his property violated his due process rights as “the Texas tort
of conversion provides [Thornton] with an adequate post-deprivation remedy.”
See Brewster v. Dretke, 587 F.3d 764, 768 (5th Cir. 2009). Therefore, he has not
shown that the district court erred in denying this claim. See id.

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      Additionally, Thornton contends that the defendants conspired to deprive
him of his tools and equal protection. Because the TDCJ and its employees
constitute a “single legal entity which is incapable of conspiring with itself,” the
district court did not err in determining that Thornton failed to state a claim for
conspiracy under 42 U.S.C. § 1985(3). See Benningfield v. City of Houston, 157
F.3d 369, 378 (5th Cir. 1998). The district court also correctly determined that
Thornton failed to state a claim because he did not allege that the defendants’
actions were motivated by race or class-based animus as required by § 1985(3).
See Bryan v. City of Madison, Miss., 213 F.3d 267, 276 (5th Cir. 2000).
      According to Thornton, the grievance process was inadequate to pursue his
claims because the grievance officers did not properly investigate or question
witnesses to gather information concerning the defendants’ misconduct. The
district court did not err in determining that Thornton did not have a
constitutionally protected liberty interest in having “grievances resolved to his
satisfaction.” See Geiger v. Jowers, 404 F.3d 371, 374 (5th Cir. 2005).
      Finally, Thornton argues that the district court erred in denying his
motion for appointment of counsel.       Because Thornton did not show that
exceptional circumstances warranted the appointment of counsel, he has not
shown that the district court abused its discretion in denying his motion. See
Castro Romero v. Becken, 256 F.3d 349, 353-54 (5th Cir. 2001).
      In his appellate brief, Thornton moves for appointment of counsel on
appeal.    Because he has not shown that this case involves exceptional
circumstances, his request for appointment of counsel is denied. See id.
      The district court’s partial dismissal of Thornton’s complaint as frivolous,
malicious, and for failure to state a claim counts as a strike under 28 U.S.C.
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996).
Thornton has two previous strikes. See Thomas v. Merchant, No. 08-20768 (5th
Cir. July 10, 2009); Thornton v. Merchant, No. H-08-2386 (S.D. Tex. Sept. 30,
2008).    Because Thornton has accumulated at least three strikes under

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§ 1915(g), he may not proceed in forma pauperis in any civil action or appeal
filed in a court of the United States while he is incarcerated or detained in any
facility unless he is under imminent danger of serious physical injury. See
§ 1915(g). Thornton is cautioned that any future frivolous or repetitive filings
in this court or any court subject to this court’s jurisdiction will subject him to
additional sanctions.
      AFFIRMED; MOTION FOR APPOINTMENT OF COUNSEL DENIED;
SECTION 1915(G) BAR IMPOSED.




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