* 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should not be published and is not precedent except under the limited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. 07-10609

Summary Calendar

ROBERT A BELL

Plaintiff-Appellant

v.

RICHARD E WATHEN; LEANN PENA

Defendants-Appellees

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 7:05-CV-128

Before JOLLY, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Robert A. Bell, Texas prisoner # 755528, moves this court for leave to

proceed in forma pauperis (IFP) in this appeal from the district court’s dismissal

of his 42 U.S.C. § 1983 suit. The district court dismissed the suit because Bell

did not show that (1) the defendants failed to protect him from harm; (2) the

defendants retaliated against him; and (3) Richard Wathen violated his First

Amendment rights. Bell’s motion is a challenge to the district court’s

United States Court of Appeals

Fifth Circuit

F I L E D

April 14, 2008

Charles R. Fulbruge III

Clerk
No. 07-10609

2

certification that his appeal is not taken in good faith. See Baugh v. Taylor, 117

197, 202 (5th Cir. 1997). 

The district court denied Bell’s motion for leave to file a writ of ad

testificandum because the testimony of the witnesses Bell listed in the motion

would have been duplicative of the testimony the district court already ordered

to be produced and/or irrelevant. Bell asserts that the district court erred in

denying his motion for leave to file a writ of ad testificandum because there is

a need for the witness testimony and the testimony is relevant. Whether to

issue the writ rests within the discretion of the district court. Ballard v.

Spradley, 557 F.2d 476, 480 (5th Cir. 1977); Cupit v. Jones, 835 F.2d 82, 86-87

(5th Cir. 1987). “It is well established that testimony which is merely repetitious

and cumulative of testimony already introduced may be excluded by the trial

court in its discretion.” Harvey v. Andrist, 754 F.2d 569, 572 (5th Cir. 1985).

Bell does not explain how the testimony of these witnesses would not be

repetitious, cumulative, or irrelevant. Bell, therefore, has failed to show that the

district court abused its discretion in denying the motion for leave to file a writ

of ad testificandum. See Ballard, 557 F.2d at 480. 

In his § 1983 complaint, Bell asserted that Wathen retaliated against him

in an attempt to chill his First Amendment right to free speech. The district

court determined that this claim should be dismissed because Bell did not give

the court and the defendants notice of the claim and because Bell did not prove

that Wathen’s retaliatory act deterred him from exercising his First Amendment

rights. Bell argues that he gave the district court and the defendants notice of

this claim. Even assuming that the district court and the defendants were

notified of Bell’s First Amendment claim against Wathen, this claim must fail

because Wathen’s comment did not deter Bell from prosecuting this lawsuit or

filing subsequent grievances. See Morris v. Powell, 449 F.3d 682, 686 (5th Cir.

2006)(“Retaliation against a prisoner is actionable only if its capable of deterring

a person of ordinary firmness from further exercising his constitutional rights.”).
No. 07-10609

3

The district court denied Bell’s request to produce the mail log. Bell

contends that he needed the mail log in order to show that his letter to Warden

Horton, which detailed his complaints about offender and official misconduct,

actually existed. Even assuming that Bell can prove that he wrote the letter and

that Horton received the letter, he cannot prevail on his retaliation and failureto-protect claims. The retaliatory acts allegedly committed by Pena and Wathen

did not deter Bell from prosecuting this lawsuit or filing subsequent grievances.

Accordingly, Bell’s retaliation claim is without merit regardless of whether

Horton received the letter. Similarly, Bell cannot prevail on his failure-toprotect claim. Bell’s claim for damages is barred because he does not argue that

he suffered an actual physical injury resulting from the prison officials’

purported failure to protect. See Jones v. Greninger, 188 F.3d 322, 326 (5th Cir.

1999). To the extent that Bell also seeks injunctive or declaratory relief, his

failure-to-protect claim still fails. Bell has no standing to seek injunctive relief

because he has not shown a likelihood of future harm. See Geiger v. Jowers, 404

F.3d 371, 375 (5th Cir. 2005). Bell therefore cannot prevail on his failure-toprotect claim even if it is shown that Horton received the letter.

This court’s dismissal of Bell’s appeal counts as one strike under 128

U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir.

1996). Bell should be cautioned that if he accumulates three strikes he will not

be able to proceed IFP in any 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). 

IFP DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED.