              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT


                            S))))))))))))))Q
                            No. 95-20064
                          Summary Calendar
                            S))))))))))))))Q


     WILLIE WOOD,

                                               Plaintiff-Appellant,

          versus



     JOE NESMITH,

                                               Defendant-Appellee.


                       S))))))))))))))))))))))))Q
      Appeal from the United States District Court for the
                   Southern District of Texas
                         (CA H 92 1799)
                       S))))))))))))))))))))))))Q
                            June 26, 1995


Before GARWOOD, HIGGINBOTHAM and DAVIS, Circuit Judges.*

GARWOOD, Circuit Judge:

     Plaintiff-appellant Willie Wood (Wood) appeals the district

court's dismissal of his 42 U.S.C. § 1983 suit as frivolous under

28 U.S.C. § 1915(d).   We vacate and remand.

                    Facts and Proceedings Below


*
     Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
     On   June    18,    1992,      Wood,     an    inmate     confined        in    the

Institutional Division of Ellis II Unit of the Texas Department of

Criminal Justice (TDCJ) in Huntsville, Texas, filed this suit

pursuant to 42 U.S.C. § 1983 against Joe Nesmith, a captain in

TDCJ's Internal Affairs Division.            In his original complaint, Wood

alleged that Nesmith, during a search of Wood's cell, destroyed

Wood's watch and destroyed or misplaced Wood's radio booster and a

Smith-Corona typewriter.         According to Wood's complaint, Nesmith

destroyed his property in retaliation for Wood's exercise of his

Fifth Amendment privilege in an investigation that Nesmith was

conducting    concerning       forged       commitment       papers    that         could

potentially     enable   an    inmate       to     be   released      early.         The

investigation    centered      on    Wood     because     another      inmate       told

investigators that Wood had helped him modify records in an effort

to secure early release, but Wood refused to discuss the matter

with Nesmith, invoking his Fifth Amendment privilege against self-

incrimination.     Wood asserts that he was acquitted of a similar

forgery charge in 1986.

     The district court referred Wood's case to a magistrate judge,

who, on August 5, 1993, ordered Wood to submit a more definite

statement of the facts of his case and answer specific questions.

These questions included "What did [Nesmith] say or do to lead you

to believe the property was destroyed in retaliation for your

refusal to cooperate?"        Wood responded that Nesmith told him "that

since I didn't want to talk to him that I might get my propert[y]

back and I might not."           Wood further stated that when Nesmith


                                        2
returned his property to him, his typewriter and radio booster were

not in the box.      According to Wood, "I hollowed [sic] at him after

he walked away asking him about my typewriter and he said .               .   .

you know Pay Back when you see it don't you."              Wood also alleged

that his ring was missing and that his watch was returned to him

"in a brown envelope destroyed."1          The magistrate judge granted

Wood leave to proceed in forma pauperis.

     On    September   6,   1994,   Wood   filed    an   amended    complaint,

alleging that Nesmith had discovered a volume of the Southwest

Reporter in Wood's cell and filed charges falsely accusing him of

stealing the book that belonged to his cellmate.               Wood asserted

that, based     on   Nesmith's   accusation,   he    was    found   guilty    of

destroying state property at a prison disciplinary hearing and

ordered to reimburse the state fifteen dollars for the book and to

serve fifteen days in solitary confinement.                Wood alleged that

Nesmith filed the charges related to the Southwest Reporter "solely

to haress [sic] Plaintiff and to make sure Plaintiff be locked up."

     In his amended complaint, Wood also alleged that Nesmith

seized the wills of his parents and a fire insurance policy on his

home.     Wood asserted that Nesmith took and failed to return these

items because a Texas jury had acquitted Wood on a charge of

tampering with state records.         In addition, Wood asserted that

Nesmith destroyed some of his personal property and failed to


1
     Wood did not mention his ring in the statement of the facts
contained in his original complaint. He did, however, list a
ring as part of his property misplaced or destroyed by Nesmith in
the prayer for relief.

                                      3
return other items in retaliation for Wood's exercise of his Fifth

Amendment right during Nesmith's investigation of the forgery.

Wood alleged that, when he refused to answer Nesmith's questions

about the forgery investigation, Nesmith told him "he would know

Pay-back when he seen [sic] it."

     The district court held a Spears hearing on January 3, 1995.

Wood and several TDCJ officials testified at this hearing, but

Nesmith was not present.        At the Spears hearing, Wood reiterated

the allegations of his complaint, asserting that Nesmith had

falsely   accused    him   of   the   Southwest   Reporter   incident   in

retaliation. Wood also testified that Nesmith had arranged for him

to be placed in administrative segregation in retaliation for his

exercise of his Fifth Amendment right and because he had been

acquitted at trial of the forgery charges.          Wood testified that

Nesmith had taken his ring, watch, typewriter, his diary, his

parents' wills, and his insurance policy and that Nesmith never

returned any of these items.2         Wood testified, "But after I took

the Fifth, he told me, said, well, you just might get your property

back, you know.     So, this is the reason I'm saying retaliation on

his part because I wouldn't talk to him."

     At the conclusion of the Spears hearing, the district court

dismissed Wood's complaint with prejudice as frivolous under 28

2
     In his more definite statement, Wood stated that Nesmith
returned his watch "in a brown envelope destroyed." However, at
the Spears hearing, Wood testified that "[Nesmith] never returned
my watch."   In his more definite statement and again in his
brief on appeal, Wood alleges that Nesmith took a personal diary
(or diaries). Wood, however, does not make this allegation about
the diary in either his original or amended complaints.

                                      4
U.S.C. § 1915(d).     In so holding, the district court reasoned that

the conduct alleged by Wood failed to raise an inference of

retaliation and that Wood's conclusory claim was insufficient.

When Wood inquired about his property damage claims, the district

court informed him that he would have to pursue those claims in

state court.   Wood filed a timely notice of appeal and was granted

leave to proceed in forma pauperis.

                                Discussion

     Dismissal of an in forma pauperis petition under 28 U.S.C. §

1915(d) is appropriate where the district court is satisfied that

the action is frivolous.    An action is frivolous "where it lacks an

arguable basis either in law or in fact."         Neitzke v. Williams, 109

S.Ct. 1827, 1831-32 (1989); see also Booker v. Koonce, 2 F.3d 114,

115-16 (5th Cir. 1993).         We review a district court's section

1915(d) dismissal for abuse of discretion.           Mackey v. Dickson, 47

F.3d 744, 745 (5th Cir. 1995).

     In the district court below, Wood essentially voiced two

complaints,    that   Nesmith   damaged    and    destroyed    his    personal

property in retaliation for his exercise of his Fifth Amendment

rights   and   that   Nesmith   filed     the    allegedly    false    charges

concerning the law book to harass him and ensure that he was placed

in administrative segregation.      In his brief on appeal, Wood does

not raise the argument that Nesmith retaliated against him by

charging him in the law book incident.              Accordingly, Wood has

abandoned this argument, and we will not consider it.                 Yohey v.

Collins, 985 F.2d 222, 225 (5th Cir. 1993).           Wood argues for the


                                    5
first time on appeal that Nesmith retaliated against him because of

his exercise of his right of access to the courts and that Nesmith

failed to return religious materials to him in violation of the

First Amendment.      We will not entertain these arguments because

Wood failed to raise them in the district court below.         Varnado v.

Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991).

        The only remaining issue is whether Wood has alleged a

constitutional   claim    based   on    his   allegations   that   Nesmith

destroyed his personal property in retaliation for the exercise of

his Fifth Amendment rights. Relying on Whittington v. Lynaugh, 842

F.2d 818 (5th Cir.), cert. denied, 109 S.Ct. 108 (1988), the

district court held that Wood's allegations did not raise an

inference of retaliation because his claims were conclusory and

insufficient.    In so holding, the district court rejected Wood's

reliance on Nesmith's alleged statements concerning "pay back,"

stating that threats were not actionable under section 1983.

     In Whittington, an inmate filed suit under 42 U.S.C. § 1983

against prison officials, alleging that the defendants denied him

certain perks in retaliation for his having filed prior lawsuits

against the Texas prison system.        The district court dismissed the

suit as frivolous under section 1915(d), and the inmate appealed.

After   recognizing    that   "[s]erious      status   discrimination   in

retaliation for a prisoner exercising his right to go to court

would violate a prisoner's civil rights," id. at 819 (citation

omitted), the Whittington court affirmed the district court's

dismissal on the ground that the inmate had "advanced nothing but


                                    6
the claim itself without the slightest support of any factual

allegations."     Id.     The Whittington court reasoned that federal

courts cannot entertain every claim by inmates claiming that prison

officials discriminated against them for one reason or another.

Id.   ("If we were to hold that appellant by his allegations in this

case had established a case which was entitled to the full panoply

of discovery, appointment of counsel, jury trial and the like, we

would be establishing a proposition that would play havoc with

every penal system in the country.").

       Under Whittington, a prisoner asserting a retaliation claim

must at least raise an inference of retaliation and may not rely

solely on unsupported and insufficient allegations.           The district

court concluded that Wood's allegations were insufficient to raise

an    inference   of    retaliation.3       We   disagree.   Based   on   the

allegations of Wood's complaint, his more definite statement, and

his Spears hearing testimony, we hold that Wood raised an inference

of retaliation for exercise of Fifth Amendment rights against self-

incrimination sufficient to survive a section 1915(d) dismissal.

Such a claim of retaliation is not legally frivolous under Neitzke.

3
     In holding that Wood failed to raise an inference of
retaliation, the district court reasoned that verbal threats were
insufficient to state a claim under section 1983. We agree with
the district court's reasoning concerning threats. See Bender v.
Brumley, 1 F.3d 271, 274 n.4 (5th Cir. 1993) ("Mere allegations
of verbal abuse do not present actionable claims under § 1983.)".
Thus, if Wood claimed only that Nesmith threatened to take action
against him in retaliation for invoking his Fifth Amendment right
against self-incrimination, the district court's reasoning would
surely apply. Wood's complaint, however, alleges more than
verbal threats of retaliation; rather, he asserts that Nesmith
followed through with his threats and destroyed his property.
Accordingly, the district court erroneously relied on Bender.

                                        7
Wood alleged that he invoked his Fifth Amendment right against

self-incrimination when he refused to answer Nesmith's questions

concerning   the   forgery   investigation,   that   Nesmith   unlawfully

destroyed his property without color or claim of justification, and

that Nesmith told Wood that he destroyed his property as "pay back"

for Wood's refusal to answer his questions.     Although we express no

view on the ultimate legal and factual merits of Wood's retaliation

claim, we hold that on the present record the district court abused

its discretion in dismissing this portion of Wood's complaint as

frivolous under section 1915(d).

                               Conclusion

     For the foregoing reasons, the judgment of the district court

is VACATED and the cause is REMANDED.




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