* 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opinion should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 01-40554

Summary Calendar

 

JOHN ANDERSON DEATON,

Plaintiff-Appellant,

versus

GARY JOHNSON, Director,

Individually and in official capacity;

R.A. TONY GARCIA, Warden,

Individually and in official capacity;

NOEL WINNERS, Access to Courts Supervisor,

Individually and in official capacity;

C.O. CHOATE, Mailroom Supervisor,

Individually and in official capacity;

TONY GREEN, Correctional Officer III,

Individually and in official capacity,

Defendants-Appellees.

--------------------

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 6:00-CV-539

--------------------

December 7, 2001

Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

John Anderson Deaton, Texas prisoner # 453784, appeals

the magistrate judge’s dismissal of his 42 U.S.C. § 1983 civil

rights action as frivolous and for failure to state a claim. A

dismissal of a cause of action as frivolous under 28 U.S.C. §
No. 01-40554

-2-

1 Defendants Green and Winners are not involved in Deaton’s claims and

were instead named in a cause of action filed by a coplaintiff, whose claims

have been severed.

1915(e)(2)(B)(i) is reviewed for abuse of discretion, while a

dismissal for failure to state a claim under 42 U.S.C. §

1915(e)(2)(B)(ii) receives de novo review. Siglar v. Hightower,

112 F.3d 191, 193 (5th Cir. 1997); Black v. Warren, 134 F.3d 732,

733-34 (5th Cir. 1998).

On appeal, Deaton challenges the dismissal of his claims

that defendant Choate violated the prison correspondence rules set

forth in light of Guajardo v. Estelle, 580 F.2d 748 (5th Cir.

1978), and that defendants Garcia and Johnson failed to prevent the

improper actions from occurring.1 The violation of a prison rule,

without more, is insufficient to establish a constitutional claim.

Hernandez v. Estelle, 788 F.2d 1154, 1158 (5th Cir. 1986).

Likewise, a remedial decree does not create or enlarge

constitutional rights, so Guajardo cannot form the basis for a

constitutional challenge to mail room delays and losses. See Green

v. McKaskle, 788 F.2d 1116, 1123 (5th Cir. 1986). His assertions

of a First Amendment violation independent of the Guajardo rules

are conclusional and cannot support a 42 U.S.C. § 1983 claim.

See Baker v. Putnal, 57 F.3d 190, 195 (5th Cir. 1996).

Deaton contends that the defendants returned his

magazines as undeliverable to retaliate against him for filing

grievances about the mail room and for lodging informal complaints

against mail room employees. A prison official may not retaliate

against an inmate for using a prison grievance procedure. See

Gibbs v. King, 779 F.2d 1040, 1046 (5th Cir. 1986). Deaton does
No. 01-40554

-3-

not, however, show direct evidence of retaliatory motivation or “a

chronology of events from which retaliation may plausibly be

inferred.” Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995)

(internal quotation and citation omitted). Deaton’s conclusional

allegations of a retaliatory motive are insufficient to support a

§ 1983 claim. See Baker, 75 F.3d at 195. Deaton has failed to

show that the magistrate judge erred in dismissing his claims as

frivolous. Consequently, the decision below is AFFIRMED.