* 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. 01-11010

Summary Calendar

 

ALLEN GLENN THOMAS,

 Plaintiff-Appellant,

versus

GARY A, WAKEFIELD, Major; NORMA HARRISON, Industrial Specialist VI; THOMAS R.

SULLIVAN, Lieutenant; GREGORY OLIVER, Major; EMILY JACOBS, Classification;

ROBERT KELLEHER, Grievance Investigator; CHARLIE G. HATFIELD, III, Industrial;

BUCKY R. SHERLEY, Industrial Supervisor III; RICHARD A. AVANTS, Captain; MARIO V.

SANCHEZ, Sergeant; EMILY L. BOND, Assistant Warden; ROBERT J. EASON, Warden;

DOYLE MCELVANEY, Warden,

 Defendants-Appellees.

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

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 1:00-CV-25-C

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

April 22, 2002

Before JOLLY, STEWART and PARKER, Circuit Judges:

PER CURIAM:*

Allen Glenn Thomas (TDCJ # 633145) appeals the dismissal as frivolous of his pro se and in

forma pauperis(IFP) civil rights complaint in which he alleged that defendants had retaliated against

him for filing grievances by requiring him to work in the garment factory, thereby allegedly placing

hislife in danger from medium-security prisoners and violating his medical restrictions, and had filed

false disciplinary cases against him, threatened and harassed him, and denied him medical treatment.
2

He has filed motions for a protective order, transfer order, discovery, and appointment of counsel.

The motions are DENIED. 

 The district court shall dismiss a prisoner’s IFP civil rights complaint if the court determines that

the action is frivolous or fails to state a claim upon which relief may be granted. Black v. Warren,

134 F.3d 732, 733 (5th Cir. 1998); see 28 U.S.C. § 1915(e)(2)(B)(i) & (ii), § 1915A. A complaint

is frivolous if it lacks an arguable basis in law or fact. Berry v. Brady, 192 F.3d 504, 507 (5th Cir.

1999). We review the dismissal of a prisoner’s complaint as frivolous for an abuse of discretion.

Berry, 192 F.3d at 507. 

 The record does not support Thomas’s assertion that the district court abused its discretion in

dismissing the complaint because the dismissal was based on credibility determinations, nor does the

record support his assertion that the district court resolved factual disputes against him.

Thomas arguesthat the district court abused its discretion by failing to construe the complaint

as asserting a viable Eighth Amendment failure-to-protect claim and a retaliation claim. Thomas

alleged no factsshowing that he had been threatened by prisoners working in the garment factory or

that prison officials were aware of facts from which the inference could be drawn that a substantial

risk of serious harm to Thomas existed by virtue of his job assignment. Thus, the district court did

not err in determining that this claim was meritless. See Farmer v. Brennan, 511 U.S. 825, 837

(1994); Jacquez v. Procunier, 801 F.2d 789, 792 (5th Cir. 1986). Thomas's conclusional assertions

of retaliation do not establish that but for a retaliatory motive, Thomas would not have been

disciplined for refusing to work. See Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995).

Thomas's complaint contained only conclusional allegations that his assignment to the garment

factory violated his medical restrictions; he alleged no facts clearly evincing that the work in the

garment factory was beyond his physical abilities and that his assignment to the garment factory

amounted to deliberate indifference to his medical needs, and thusthe district court did not abuse its

discretion in dismissing this claim. See Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985).
3

The district court did not abuse its discretion in determining that Thomas's claims of

harassment were not actionable under 42 U.S.C. § 1983. Verbal threats and name-calling by prison

guards do not amount to a constitutional violation. See Bender v. Brumley, 1 F.3d 271, 274 n.4 (5th

Cir. 1993); Lynch v. Cannatella, 810 F.3d 1363, 1376 (5th Cir. 1987).

Because Thomas's appeal is without arguable merit and is frivolous, it is DISMISSED. See

Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5TH CIR. R. 42.2.

The dismissal of this appeal and the district court's dismissal of thislawsuit asfrivolous count

as two strikes for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 

103 F.3d 383, 388 (5th Cir. 1996). Thomas is WARNED that if he accumulates three strikes he will

not be allowed to proceed IFP in any civil action or appeal brought in a United States court while he

isincarcerated or detained in anyfacilityunless he is under imminent danger ofserious physical injury.

See 28 U.S.C. § 1915(g).

APPEAL DISMISSED AS FRIVOLOUS; MOTIONS DENIED; 28 U.S.C. § 1915(g)

SANCTIONS WARNING ISSUED.