     Case: 08-60381     Document: 00511025396          Page: 1    Date Filed: 02/11/2010




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

                                                  FILED
                                                                          February 11, 2010
                                     No. 08-60381
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

JOHN CLAYTON FIELD,

                                                   Plaintiff–Appellant,

v.

CORRECTIONS CORPORATION OF AMERICA INC; MISSISSIPPI
DEPARTMENT OF CORRECTIONS; DIVISION DIRECTOR GARDNER CCA;
COMMISSIONER C EPPS, MISSISSIPPI DEPARTMENT OF CORRECTIONS;
ASSISTANT COMMISSIONER E SPARKMAN, MISSISSIPPI DEPARTMENT
OF CORRECTIONS; ADMINISTRATOR OF ARP PROGRAM 6-SPANN
MISSISSIPPI DEPARTMENT OF CORRECTIONS; LEGAL CLAIMS
ADJUDICATOR L HARDY, MISSISSIPPI DEPARTMENT OF CORRECTIONS;
CONTRACT MONITOR MALLETT MISSISSIPPI DEPARTMENT OF
CORRECTIONS; HEPO WARDEN D WALLER CCP/WCCF; ASSISTANT
WARDEN G WALKER, CCP/WCCF; CHIEF OF SECURITY V. VINES,
CCP/WCCF; ASSISTANT CHIEF OF SECURITY PERRY, CCP/WCCF; UNIT
MANAGER S JACKSON; JEWORSKI MALLETT,

                                                   Defendants–Appellees.


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:06-CV-119


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 08-60381       Document: 00511025396 Page: 2               Date Filed: 02/11/2010
                                    No. 08-60381

       John Clayton Field, Mississippi prisoner #K2672, moves for leave to
proceed in forma pauperis (IFP). The motion constitutes a challenge to the
district court’s certification that Field’s appeal of the denial of his 42 U.S.C.
§ 1983 action concerning the conditions at Wilkinson County Correctional Center
(Wilkinson) is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202
(5th Cir. 1997). Our inquiry into whether the appeal is taken in good faith is
limited to whether the appeal involves any nonfrivolous issues. Howard v. King,
707 F.2d 215, 220 (5th Cir. 1983).
       Field has not shown that he will present a nonfrivolous issue on appeal
concerning the denial of tinted glasses. Field has not named the particular
defendants responsible for the alleged violation, and relief under § 1983 is not
available under a respondeat superior theory. See Thompkins v. Belt, 828 F.2d
298, 303-04 (5th Cir. 1987). Further, Field has not alleged that prison officials
knew that he faced a substantial risk of serious harm as a result of the denial of
the tinted lenses and that the officials failed to take reasonable measures to
abate such alleged risk. See Farmer v. Brennan, 511 U.S. 825, 847 (1994).
       Field contends that his constitutional rights were violated because he was
exposed to environmental tobacco smoke (ETS) at Wilkinson. Field raised this
claim for the first time in objections to the magistrate judge’s report.1 Even if we
assume that the issue was properly before the district court, we conclude that
Field has not made a showing that he was exposed to unreasonably high levels
of ETS at Wilkinson or that the Wilkinson officials were deliberately indifferent
to the harm of the ETS. See Helling v. McKinney, 509 U.S. 25, 35 (1993).
Because he has not shown that he suffered a physical injury due to exposure to

       1
          Claims raised for the first time in objections to the magistrate judge's report are
generally not considered on appeal. See Finley v. Johnson, 243 F.3d 215, 219 n.3 (5th Cir.
2001). Given the length of time that had passed, the pendency of the motion for summary
judgment, and Field’s failure to show why he did not add this claim earlier, the implicit denial
of leave to amend does not constitute an abuse of discretion. See Little v. Liquid Air Corp., 952
F.2d 841, 846 (5th Cir. 1992).


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                                 No. 08-60381

ETS, Field may not recover damages. See Herman v. Holiday, 238 F.3d 660,
665-66 (5th Cir. 2001). Field is not entitled to injunctive relief because he has
been transferred to Parchman, and he has not shown that he is currently being
exposed to unreasonably high levels of ETS at Parchman or that Parchman
officials acted with deliberate indifference to the alleged harm from the ETS.
See Helling, 509 U.S. at 35; Herman, 238 F.3d at 665-66.
      On his claims that he was housed with a prisoner who verbally and
physically threatened him; that he was improperly housed with “C” custody
disciplinary offenders who have threatened him; and that he was verbally and
mentally abused by the staff and other offenders, Field cannot present a
nonfrivolous issue on appeal. See Robertson v. Plano City of Texas, 70 F.3d 21,
24 (5th Cir. 1995) (verbal threats do not rise to the level of a constitutional
violation). Field withdrew his claim concerning threats of “C” custody prisoners
at the hearing. Field may not recover damages because he has not shown that
he suffered a physical injury. See Jones v. Greninger, 188 F.3d 322, 326 (5th Cir.
1999). Field is not entitled to injunctive relief because he has been transferred
to Parchman and is no longer in any danger of being housed with Offender
Smith. See Geiger v. Jowers, 404 F.3d 371, 375 (5th Cir. 2005). Further, Field
has not shown that he warned Parchman officials named as defendants that he
was threatened and that they were deliberately indifferent to a need for
protection. See Farmer, 511 U.S. at 837; see also Jacquez v. Procunier, 801 F.2d
789, 792 (5th Cir. 1986).
      With respect to his claim that he was denied recreation and exercise, Field
has not made a showing that his allegations rise to the level of an Eighth
Amendment violation. See Wilkerson v. Maggio, 703 F.2d 909, 911-12 (5th Cir.
1983). Field admitted that he did not suffer a physical injury; he cannot recover
damages absent such injury. See 42 U.S.C. § 1997e(e); Hernandez v. Velasquez,
522 F.3d 556, 561 (5th Cir. 2008). Field is not entitled to injunctive relief as he
has been transferred to Parchman, and he has not shown that he was denied

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recreation for an extended period of time or was harmed by the denial of
recreation at Parchman. See Hernandez, 522 F.3d at 561. Field may not raise
new factual allegations for the first time on appeal that Wilkinson prison
officials denied recreational and exercise time from June 2005 to January 2007
and that he was completely denied any recreation at Parchman from July 2007
to June 2008. See Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991).
      Although Field contends that he suffered retaliation, he has not
established the violation of a specific constitutional right; he has not shown that
his right of access to the courts was violated as he has not shown that his
position as a litigant was prejudiced. See Lewis v. Casey, 518 U.S. 343, 349-52
(1996); Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995). Further, he has not
alleged a chronology of events from which retaliation may be plausibly inferred.
See Woods, 60 F.3d at 1166.
      Field has abandoned his claim that prison officials violated his First
Amendment rights by denying him a lighted chalice. See Yohey v. Collins, 985
F.2d 222, 224-25 (5th Cir. 1993). If Field’s claim concerning the denial of prayer
beads was properly before the district court, we conclude that Field has not
shown that he will raise a nonfrivolous First Amendment issue on appeal. Field
does not explain the significance of the prayer beads, show that his sincerely
held religious beliefs require the use of prayer beads, or show how he was
harmed by the alleged denial of the prayer beads. See Turner v. Safley, 482 U.S.
78, 89-90 (1987); Wisconsin v. Yoder, 406 U.S. 205, 215-16 (1972).
      Field listed additional issues that he raised in the district court and states
that they remain applicable to his incarceration at Parchman. Because Field
has not adequately briefed these issues, he has not made a showing of a
nonfrivolous issue for appeal. See Yohey, 985 F.2d at 224-25.
      Because Field has not shown that he will raise a nonfrivolous issue on
appeal, his motion for leave to proceed IFP is denied. See Baugh, 117 F.3d at
202. Field’s appeal is without arguable merit and is frivolous. See Howard, 707

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F.2d at 219-20. It is therefore DISMISSED. 5 TH C IR. R. 42.2. Field is advised
that the dismissal of this appeal counts as a strike for purposes of 28 U.S.C.
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996). Field
previously received two strikes under § 1915(g). See Field v. Kottemann, No.
1:01-CV-492 (S.D. Miss. March 11, 2002), aff’d, Field v. Kottemann, No. 05-60061
(5th Cir. March 8, 2007) (unpublished).       Field is advised that he has now
accumulated three strikes, and that he will no longer be allowed to proceed IFP
in any civil action or appeal filed while he is detained or incarcerated in any
facility unless he is in imminent danger of serious physical injury. See § 1915(g).
      IFP MOTION DENIED; APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR
IMPOSED.




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