* Under 5TH CIR. R. 47.5, the court has determined that this

opinion should not be published and is not precedent except in

the limited circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 97-40751

Summary Calendar

 

RODNEY WAYNE SMITH,

Plaintiff-Appellant,

versus

FRED BECKER, NORMAN E. MCCLURE, CURTIS B. MCKNIGHT, ET AL.,

Defendants-Appellees.

- - - - - - - - - -

Appeal from the United States District Court

for the Southern District of Texas

USDC No. G-92-CV-515

- - - - - - - - - -

June 29, 1998

Before WISDOM, DUHÉ, and BARKSDALE, Circuit Judges

PER CURIAM:*

Rodney Wayne Smith (#330699), a state prisoner, appeals the

dismissal of his civil rights complaint. The complaint was

dismissed as frivolous under 28 U.S.C. § 1915(e)(2)(B)(I). Smith

argues that the district court erred in dismissing his claims of

retaliation for exercising his constitutional rights, denial of

equal protection, and invasion of privacy for an allegedly

unreasonable strip and body-cavity search. For reasons discussed

below, we VACATE the district court’s judgment and REMAND the 
No. 97-40751

-2-

 

** Smith does not suggest that defendants Becker, Scott,

Kufeji, Herklotz, Adams, Velasquez, Collins, Barerra, Lapointe,

Mader, Lucky, Germany, and Jenkins were motivated by retaliatory

animus. To the extent that Smith intends to assert retaliation

claims against these defendants, those claims were properly

dismissed.

case for further proceedings on the retaliation and strip-andbody-cavity-search claims. In all other respects, the district

court’s judgment is AFFIRMED.

A state official may not retaliate against a prisoner for

exercising his federally protected rights. Williams v. Rhoden,

629 F.2d 1099, 1103 (5th Cir. 1980). Smith alleged that

defendant Curtis McKnight stated that he would “come down hard”

on Smith for filing a grievance; that three disciplinary

proceedings which postdated McKnight’s threat were motivated by

retaliatory animus; that defendants Norman McClure, McKnight, and

C. Godine had conspired to cause Godine to lie in connection with

a July 1992 disciplinary charge; that defendant N. Sylvester

brought false disciplinary charges against him and restricted his

use of the prison law library because Smith had filed a grievance

regarding restrictions in his use of the library; that a public

strip and body-cavity search by defendants W. VanHook and J. Mayo

had occurred after he had filed this lawsuit and several other

grievances; and that Smith had been charged with a disciplinary

violation related to that incident.** These allegations are

sufficient to state nonfrivolous retaliation claims against the

defendants named in the preceding sentence. See Woods v. Smith,

60 F.3d 1161, 1166 (5th Cir. 1995). See also Gibbs v. King, 779

F.2d 1040, 1046 (5th Cir. 1986) involving right of access to
No. 97-40751

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courts; Ruiz v. Estelle, 679 F.2d 1115, 1153 (5th Cir.) involving

the right to complain of prison conditions and treatment, opinion

amended in part and vacated in part, 688 F.2d 266 (1982);

Gartrell v. Gaylor, 981 F.2d 254, 259 (5th Cir. 1993) recognizing

that a prisoner may have a protected liberty interest in the

prison grievance procedures. The district court’s judgment

dismissing the retaliation claims against defendants McKnight,

McClure, Godine, Sylvester, VanHook, and Mayo as frivolous, is

VACATED, and the case is REMANDED for further proceedings.

Smith also contends that the district court erred in

dismissing, as frivolous, his Fourth Amendment claim against

defendants VanHook and Mayo for the strip and body-cavity search. 

“The Fourth Amendment . . . requires that searches or seizures

conducted on prisoners must be reasonable under all the facts and

circumstances in which they are performed.” Elliott v. Lynn, 38

F.3d 188, 190-91 (5th Cir. 1994) (internal quotation marks

omitted). “Under appropriate circumstances, visual body cavity

searches of prisoners can be constitutionally reasonable.” Id.

at 191. The question of reasonableness, however, involves issues

of fact which were not resolved at this stage of the litigation. 

See Denton v. Hernandez, 504 U.S. 25, 32-33 (1992). The district

court’s judgment dismissing the claim against VanHook and Mayo,

related to the strip and body-cavity search, is VACATED, and the

case is REMANDED for further proceedings.

Smith also contends that various defendants violated his

rights to equal protection. Smith failed to allege that the

defendants were motivated by a discriminatory purpose. For that
No. 97-40751

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reason, the district court properly dismissed Smith’s equalprotection claims as legally frivolous. See Woods v. Edwards, 51

F.3d 577, 580 (5th Cir. 1995). The dismissal of this claim as

frivolous is AFFIRMED.

Smith contends that the district court erred in refusing to

permit him to file documents and tape recordings related to his

prison disciplinary proceedings into the record. The district

court did not rule that the recordings and documents could never

be introduced, only that they were not appropriately presented at

that time. No abuse of discretion has been shown. The district

court’s order is AFFIRMED.

Smith contends that the district court erred in refusing to

grant that motion for injunctive relief related to conditions at

a prison law library. Smith’s request for a preliminary

injunction implicated his right of access to the courts. Because

Smith has not shown a substantial likelihood of success on his

denial of access to the court’s claim, see Henthorn v. Swinson,

955 F.2d 351, 354 (5th Cir. 1992), and because the facts

underlying the motion for injunctive relief were not pertinent to

a claim at issue in this lawsuit, he cannot show that the

district court abused its discretion in denying the motion. See

Lakedreams v. Taylor, 932 F.2d 1103, 1107 (5th Cir. 1991). The

district court’s order is AFFIRMED.

AFFIRMED IN PART; VACATED AND REMANDED IN PART.