     Case: 16-10245      Document: 00514352435         Page: 1    Date Filed: 02/19/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 16-10245
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
KASSAN KHALID MORGAN,                                                    February 19, 2018
                                                                           Lyle W. Cayce
                                                 Plaintiff-Appellant            Clerk

v.

DANA RICHARDS, Correctional Officer; KIMBERLY SATTERFIELD,
Correctional Officer; KEVIN DARDEN, Correctional Officer; RICK
BREWSTER, Correctional Officer; JAMES RICHEY; MELISSA STENGEL;
CHRISTOPHER ARIAS, Correctional Officer; FRANKIE L. HAYNES, Law
Librarian; HAZELLE M. DAVIS, Correctional Officer V; KENNETH
MADISON, JR.; ROBERT WAINSCOTT; JAMES TAPSCOTT; ADAM
SALVADOR; NFN BOYAL, Captain,
                                    Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 7:12-CV-34


Before DENNIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Kassan Khalid Morgan, Texas prisoner # 1306656, seeks leave to proceed
in forma pauperis (IFP) to appeal the district court’s dismissal of his civil rights
complaint as frivolous.        By moving for leave to proceed IFP, Morgan is



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-10245

challenging the district court’s certification that his appeal is not taken in good
faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); 28 U.S.C.
§ 1915(a)(3); FED. R. APP. P. 24(a). The inquiry into Morgan’s good faith “is
limited to whether the appeal involves ‘legal points arguable on their merits
(and therefore not frivolous).’” Howard v. King, 707 F.2d 215, 220 (5th Cir.
1983). We conclude that Morgan’s appeal involves several non-frivolous issues.
      First, Morgan contends that prison officials retaliated against him for
filing a lawsuit against their coworkers. He alleges that officials denied him
food and water, used excessive force, and filed false disciplinary charges
against him. As to the denial of food, Morgan alleged in his response to a
questionnaire from the court that defendant Kimberly Satterfield asked if he
was “the Morgan suing her co-workers” and that, after he responded that he
was, she threatened him and denied him food. Based on Morgan’s version of
events, whether he has alleged a sequence of “events from which retaliation
may be plausibly be inferred,” Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir.
1995), involves legal points arguable on their merits. See Howard, 707 F.2d at
220; see also Walker v. Savers, 658 F. App’x 720, 729 (5th Cir. 2016) (finding
retaliatory intent when officers confiscated Walker’s typewriter immediately
following a meeting in which another officer stated “‘all of this’” was in
retaliation for Walker’s presuit notice).
      In dismissing this claim, the district court credited Satterfield’s version
of events surrounding the denial of food, including her testimony that she was
previously unaware of Morgan’s prior suit.          The court determined that
Satterfield could not give Morgan his food because he was masturbating near
the cell door, an allegation Morgan denies.        The district court relied on
testimony in a hearing before a magistrate judge in the context of Morgan’s
motion for a preliminary injunction. The district court noted that although it



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did not conduct a Spears 1 hearing, the hearing before the magistrate judge
served the same purpose. In crediting Satterfield’s testimony, the district
court exceeded the scope of permissible credibility assessment for Spears
testimony. See Cay v. Estelle, 789 F.2d 318, 327 (5th Cir. 1986) (the districts
court’s assessment of credibility of Spears testimony may only include the
complainant’s “change in position when exposed to interrogation . . . , major
internal inconsistencies in a witness’s testimony, or substantial conflicts
between the testimony of supporting witnesses”).
      As to the denial of water, Morgan alleged that Satterfield threatened him
for suing her coworkers and that about 20 to 30 minutes later she and
defendant Dana Richards turned off the water in his cell, which left him
without drinking water and with feces in his toilet. Based on Morgan’s version
of events, whether retaliation may be plausibly inferred involves legal points
arguable on their merits.
      Here, too, the district court credited Satterfield’s testimony that
Morgan’s water was turned off after he flooded his cell and that she was
unaware of Morgan’s earlier suit. Morgan admits to flooding his cell with hot
water in an attempt to get the attention of a ranking officer after the
defendants turned off his cold water. In crediting Satterfield’s testimony, the
district court exceeded the scope of permissible credibility assessment for
Spears testimony. See Cay, 789 F.2d at 327.
      As to the use of force in retaliation, Morgan asserts that the defendants
punched him in the face, head, back, and side. Morgan alleged that while
beating him, the officers repeatedly told him to drop his lawsuit. Based on
Morgan’s version of events, whether he has established that a retaliatory
motive can be inferred involves legal points arguable on their merits. The


      1   Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).


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                                  No. 16-10245

district court concluded that the defendants’ use of force was a result of
Morgan’s own recalcitrant conduct and not based on any retaliatory motive,
apparently discrediting Morgan’s assertions that the officers told him to drop
the suit as they were beating him. Here, too, the district court exceeded the
scope of permissible credibility assessment for Spears testimony. See id. at
327.
        As to the filing of disciplinary charges, Morgan argues that the
defendants retaliated against him by threatening to file, and by actually filing,
false disciplinary charges against him. The district court did not specifically
address this claim. In the district court, Morgan asserted Satterfield filed false
disciplinary charges accusing him of masturbating in his cell four days after
she asked him if he was “the Morgan suing her coworkers.” Because Morgan
alleged that Satterfield specifically referenced the lawsuit prior to filing the
false disciplinary complaint, whether the facts alleged support an inference of
a retaliatory motive involves legal points arguable on their merits.
        Next, Morgan asserts that the district court erred by dismissing his
claim of denial of access to the courts. Morgan alleged that prison officials
denied him access to the courts by refusing to provide him with supplies, legal
research materials, and postage. As a result, he claimed that he was required
to respond to a motion for summary judgment filed in his previous suit on toilet
paper and that the district court rejected this filing and granted summary
judgment in favor of the defendants. The district court’s docket in the relevant
case corroborates that the court rejected Morgan’s pleading in response to a
motion for summary judgment because it was written on toilet paper. Whether
Morgan’s allegations give rise to a claim of denial of access involves legal points
arguable on their merits.




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      Finally, Morgan argues that the district court abused its discretion in
dismissing as frivolous his claim that prison officials violated his Eighth
Amendment rights by using excessive force against him. In his response to the
district court’s questionnaire, Morgan described the use of force as follows: on
March 1, 2012, defendants Arias, Madison, Wainscott, Tapscott, and Salvador
entered his cell as he was lying in his bunk. Salvador hit Morgan with a large
plexiglass shield and two other defendants punched him his face and his head.
Two additional defendants punched him in the ribs and sides. Morgan “balled
up” on the floor to stop the punches to his face. Morgan then jerked himself
backwards in the cell so that the incident would be “in view of the video
camera.” A defendant punched Morgan’s buttocks and jabbed at his anus and
testicles.   After Morgan was handcuffed, he was punched on the side of his
face. Defendants were “twisting and pushing and pulling” the handcuffs and
shackles, trying to make Morgan scream in pain.
      Morgan asserted that he had not engaged in any physical or verbal
confrontation with a prison official and that he had not refused or failed to
comply with any directive from a prison official, prior to the use of force.
Morgan alleged that he suffered a “busted lip,” bruises, facial swelling, and loss
of circulation and feeling in his ankles and wrists.          The district court
determined that Morgan “failed to state facts which could demonstrate that
the force was intended to cause harm and therefore excessive.” However, based
on Morgan’s allegations, his argument that the force was excessive is involves
a nonfrivolous issue arguable on the merits.
      Morgan has shown that these claims are not frivolous and has
demonstrated that he is financially eligible to proceed IFP.           Therefore,
Morgan’s motion for leave to proceed IFP is granted. See Baugh, 117 F.3d at
202. We dispense with further briefing. We vacate in part the district court’s



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dismissal as frivolous of Morgan’s retaliation claims, denial-of-access-to-the-
courts claims, and excessive-force claim and remand for further proceedings.
We otherwise affirm the district court’s judgment. We also affirm the district
court’s denial of Morgan’s motion for the appointment of counsel.
      IFP GRANTED; MOTION FOR THE APPOINTMENT OF COUNSEL
DENIED; AFFIRMED IN PART, VACATED IN PART, AND REMANDED.




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