     Case: 18-10915      Document: 00515157143         Page: 1    Date Filed: 10/14/2019




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

                                                                                FILED
                                      No. 18-10915                       October 14, 2019
                                                                           Lyle W. Cayce
ARTHUR LUTHER MCKINNEY,                                                         Clerk


                                                 Plaintiff-Appellant

v.

SR. WARDEN C. MCDUFFIE; LT NFN GARCIA; OFFICER NFN REYES;
OFFICER NFN CHAMBERLAN; CAPTAIN NFN WILLIAMS; SGT. NFN
ALVARZE,

                                                 Defendants-Appellees


                  Appeals from the United States District Court
                       for the Northern District of Texas
                             USDC No. 5:17-CV-243


Before JONES, HIGGINSON, and OLDHAM, Circuit Judges.
PER CURIAM: *
       Arthur Luther McKinney, Texas prisoner # 2016392, moves for leave to
proceed in forma pauperis (IFP). He wishes to appeal the dismissal of his 42
U.S.C. § 1983 complaint in which he alleged that prison officials retaliated
against him, conspired to have him removed from his prison job, subjected him
to unconstitutional conditions of confinement, and failed to respond sufficiently



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-10915

to grievances.    He also appeals his claim that the magistrate judge (MJ)
erroneously severed and transferred his allegation of deliberate indifference to
his serious medical needs.
      The record shows that McKinney agreed to have the MJ conduct his case
to final judgment. The MJ dismissed the complaint as frivolous and for failure
to state a claim pursuant to 28 U.S.C. § 1915 and § 1915A, denied leave to
proceed IFP on appeal, and certified that an appeal would not be taken in good
faith. By moving to proceed IFP on appeal, McKinney challenges the MJ’s
certification decision. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
Our inquiry into an appellant’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) (internal quotation marks
and citation omitted).
      The MJ dismissed McKinney’s retaliation claim as frivolous and for
failure to state a claim, determining that he did not allege facts establishing
that the prison officials intended to retaliate against him. He did not show
that he would not have been fired from his job absent the officers’ purported
retaliatory motive. The records showed that McKinney was fired because he
engaged in inappropriate behavior, including accessing vending machines and
other areas where prisoners are not allowed. Further, he did not allege facts
showing that the officers’ alleged retaliatory conduct deterred him from further
exercising his constitutional rights.
      To state a viable claim for retaliation, a prisoner must allege “(1) a
specific constitutional right, (2) the defendant’s intent to retaliate against the
prisoner for his or her exercise of that right, (3) a retaliatory adverse act, and
(4) causation.”   McDonald v. Steward, 132 F.3d 225, 231 (5th Cir. 1998).
McKinney did not allege any facts other than his belief that the prison officers



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                                  No. 18-10915

attempted to have him fired. McKinney has not shown that he can raise a
nonfrivolous issue as to this claim.
      The    MJ   dismissed     McKinney’s     conspiracy   claim    as   frivolous,
determining that his allegations were conclusory; he had no constitutional
right to a particular job; he failed to plead facts showing that the prison officers
acted in concert with specific intent to deprive him of a constitutional right, he
did not show or allege an underlying § 1983 violation; and without an
underlying § 1983 claim, he had no actionable conspiracy claim.
      To establish a conspiracy, a prisoner must allege an actual violation of a
right protected under § 1983 and that the defendants acted in concert with
specific intent to violate that right. Kerr v. Lyford, 171 F.3d 330, 340 (5th Cir.
1999), abrogated on other grounds by Castellano v. Fragozo, 352 F.3d 939, 948-
49 (5th Cir. 2003). “Bald allegations” of a conspiracy are not enough. Young
v. Biggers, 938 F.2d 565, 569 (5th Cir. 1991) (internal quotation marks and
citations omitted). McKinney asserts that his protected right to complain to a
supervisor about misconduct of employees without retaliation is the right that
was violated. However, McKinney’s claim is merely speculative, and the record
shows that he was removed from his job because of inappropriate behavior. He
has not shown that he can raise a nonfrivolous issue as to the alleged
conspiracy. See Kerr, 171 F.3d at 340.
      As for his claim regarding unconstitutional conditions of confinement,
the MJ determined that his allegations concerning exposure to carbon
monoxide and toxic paint constituted a negligence claim.            McKinney only
challenges the dismissal of the paint allegations and therefore waives his claim
based on exposure to carbon monoxide. See Brinkmann v. Dallas Cty. Deputy
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). The MJ concluded that even
if his allegations amounted to more than negligence, McKinney failed to allege



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a constitutional violation regarding work conditions because prisons are not
required to observe the health and safety standards to which private industry
must adhere. See Sampson v. King, 693 F.2d 566,569 (5th Cir. 1982).
      To allege deliberate indifference, a prisoner must show that the
defendants “ignored his complaints, intentionally treated him incorrectly, or
engaged in any similar conduct that would clearly evince a wanton disregard
for any serious medical needs.” Domino v. Texas Dep’t of Criminal Justice, 239
F.3d 752, 756 (5th Cir. 2001) (internal quotation marks and citation omitted).
It “is an extremely high standard to meet.” Gobert v. Caldwell, 463 F.3d 339,
346 (5th Cir. 2006) (internal quotation marks and citation omitted).         The
prisoner must show that he was “exposed to a substantial risk of serious harm”
and that prison officials “were actually aware of the risk, yet consciously
disregarded it.” Lawson v. Dallas Cty., 286 F.3d 257, 262 (5th Cir. 2002).
      McKinney’s allegations did not show that the defendants actually were
aware of any risk of harm and consciously disregarded it. His allegations fall
short of showing that Warden McDuffie, Captain Williams, or Officer
Chamberlan made the decision to have him paint without satisfactory safety
gear or conditions, knowing that McKinney would suffer health impairments
as a result of his exposure to the paint. Moreover, McKinney conceded that
once he notified the Captain, he was brought for medical care and he was
removed from the job.       McKinney has not shown that he can raise a
nonfrivolous claim regarding the conditions of his confinement.
      Although McKinney acknowledges that he lacked a federally protected
liberty interest in having his grievances resolved to his satisfaction, he argues
that there must be an exception to this rule because peoples’ lives were at risk.
Because he lacks a protected interest in a favorable resolution to his




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                                  No. 18-10915

grievances, his complaint was properly dismissed as frivolous. See Geiger v.
Jowers, 404 F.3d 371, 374 (5th Cir. 2005).
      Finally, the MJ did not abuse discretion by severing McKinney’s claim of
deliberate indifference and transferring it to the Southern District of Texas,
where a substantial part of the events giving rise to his claim occurred. See
Broussard v. State Farm Fire & Cas. Co., 523 F.3d 618, 631 (5th Cir. 2008).
      McKinney’s appeal lacks arguable merit and is frivolous. See Howard,
707 F.2d at 220. Accordingly, his motion for leave to proceed IFP is denied,
and the appeal is dismissed as frivolous. See Baugh, 117 F.3d at 202 n.24; 5TH
CIR. R. 42.2. McKinney’s motion for appointment of counsel is also denied.
This court’s dismissal of his appeal as frivolous and the MJ’s dismissal of the
complaint count as two strikes under § 1915(g). See Adepegba v. Hammons,
103 F.3d 383, 387-88 (5th Cir. 1996).         The district court also dismissed
McKinney’s § 1983 complaint as frivolous in McKinney v. Avila, No. 4:17-CV-
3340 (S.D. Tex. Feb. 2, 2018). Because he has now accumulated at least three
strikes, McKinney is barred from proceeding in forma pauperis 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).
Further, McKinney is warned that the continued filing or prosecution of
actions that are frivolous or fail to state a claim will result in the imposition of
more severe sanctions, including monetary penalties and restrictions on his
ability to file actions and appeals.
      MOTIONS DENIED; APPEAL DISMISSED; § 1915(g) BAR IMPOSED;
SANCTION WARNING ISSUED.




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