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. 09-40262

Summary Calendar

JED STEWART LINEBERRY,

Plaintiff-Appellant

v.

UNITED STATES OF AMERICA; FEDERAL BUREAU OF PRISONS; HARLEY

LAPPIN, Director of Bureau of Prisons; FEDERAL CORRECTIONAL

INSTITUTION TEXARKANA,

Defendants-Appellees

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 5:08-CV-72

Before JONES, Chief Judge, and DAVIS and WIENER, Circuit Judges.

PER CURIAM:*

Jed Stewart Lineberry, federal prisoner # R10296-078, is appealing the

district court’s dismissal with prejudice of his claims, arising during his

incarceration at the Federal Correctional Institution (FCI) in Texarkana, Texas,

in which he sought injunctive relief and damages under the Federal Tort Claims

Act (FTCA) and Bivens v. Six Unknown Named Agents of Narcotics, 403 U.S. 388

United States Court of Appeals

Fifth Circuit

F I L E D

June 3, 2010

Lyle W. Cayce

Clerk

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No. 09-40262

2

(1971). Lineberry also appeals the dismissal without prejudice of claims arising

during his incarceration at the FCI, Seagoville, which were dismissed as being

duplicative of claims he raised in a suit pending in the Northern District of

Texas.

Lineberry has not challenged the dismissal of his claims under the FTCA

for failure to exhaust his administrative remedies. Thus, he has abandoned

those claims on appeal. See Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir.

1999).

Lineberry complains that he did not consent to the matter being referred

to the magistrate judge and that based on his objections filed pursuant to 28

U.S.C. § 636(c), the magistrate judge lost all jurisdiction to conduct any

proceedings in his case. This argument is frivolous because the magistrate judge

only made “findings of fact and recommendations” pursuant to § 636(b)(1)(B),

and the consent of the parties was not required for the district judge to refer the

case to a magistrate judge because “the ultimate decision-making authority was

retained by the district court.” Jackson v. Cain, 864 F.2d 1235, 1242 (5th Cir.

1989). 

Lineberry argues that the district court had personal jurisdiction over

Director Lappin because there was an affirmative link between the alleged

constitutional deprivations and Lappin’s approval of unconstitutional policies or

plans. It is not necessary to detemine if the district court had personal

jurisdiction over Lappin because Lineberry’s conclusional allegations are not

supported by any specific facts showing Lappin’s personal involvement in the

daily operation of the prison or that Lappin personally implemented a deficient

policy resulting in a constitutional violation. Thus, the district court did not err

in determining alternatively that Lineberry failed to allege a Bivens claim

against Lappin. See Cronn v. Buffington, 150 F.3d 538, 544 (5th Cir. 1998).

Because the district court held that his administrative remedies were

rendered unavailable, Lineberry is entitled to seek injunctive relief to challenge

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the alleged unconstitutional policies and practices. See Rourke v. Thompson, 11

F.3d 47, 49 (5th Cir. 1993). However, as discussed below, Lineberry has failed

to argue facts that support plausible constitutional claims. See In re Katrina

Canal, 495 F.3d 201, 205 (5th Cir. 2007).

Lineberry has not alleged any specific facts showing that the alleged

overcrowded and understaffed conditions at the Texarkana facility have placed

him at risk for serious harm or that he has suffered any serious harm to his

health and safety. Lineberry has not asserted that he has been involved in a

fight, injured, or developed a medical problem because of the overpopulation of

the Texarkana facility. He has not asserted facts showing that he was denied

medical care for a specific injury or illness at Texarkana. Nor has he alleged any

specific facts showing that the Texarkana prison officials are aware of the

presence of asbestos in the facility that is presently causing a specific risk of

harm to Lineberry or any other prisoner. Thus, Lineberry has not alleged facts

showing that there is an excessive risk that he will suffer a serious harm

because of the prison population or because of dangerous conditions that the

prison officials were aware of and failed to address. See Farmer v. Brennan, 511

U.S. 825, 832 (1994); Palmer v. Johnson, 193 F.3d 346, 352 (5th Cir. 1999). Nor

has he alleged facts showing deliberate indifference to his medical needs. See

Wilson v. Seiter, 501 U.S. 294, 297 (1991).

Lineberry argues for the first time on appeal that the Texarkana prison

factory, Unicor, is a slave camp that produces dangerous chromium, a chemical

causing cancer and lung disease resulting in premature deaths. The court will

not consider a newly raised factual claim on appeal. Stewart Glass & Mirror,

Inc. v. U.S. Auto Glass Discount Centers, Inc., 200 F.3d 307, 316-17 (5th Cir.

2000).

Nor has Lineberry alleged specific facts showing that his imprisonment

with illegal aliens and gang members places him at an unnecessary risk of

serious injury or that prison officials are aware of such a risk. Thus, he failed

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to allege a claim for failure to protect. See Farmer, 511 U.S. at 832-33, 837.

Lineberry argues for the first time in his reply brief that Texarkana houses over

200 mentally ill prisoners, who have only sporadic monitoring and that these

prisoners sometimes assault other inmates without cause. This court will not

consider an issue raised for the first time in a reply brief. See United States v.

Jackson, 426 F.3d 301, 304 n.2 (5th Cir. 2005).

Lineberry makes a conclusional argument that “one of the defendants is

guilty of retaliation against him for filing the complaints against the

defendants.” He does not identify the officer who allegedly made the threats.

Further, there is no allegation that an officer committed a retaliatory act as a

result of Lineberry’s attempt to file his grievances. Lineberry’s arguments are

too general and conclusional to show that he had stated a valid constitutional

claim of retaliation. See Bibbs v. Early, 541 F.3d 267, 270 (5th Cir. 2008).

Lineberry’s argument that he is forced into servitude in violation of the

13th and 15th Amendments is also frivolous. The Fifteenth Amendment

addresses voting rights and has no application to a claim of involuntary

servitude. Lineberry acknowledges that he is paid for his work at the prison,

and he provides no evidence of a realistic threat of compulsion, an element of an

involuntary servitude claim. See Channer v. Hall, 112 F.3d 214, 218 (5th Cir.

1997). The fact that he may lose good-time credits under prison regulations if

he refuses to work does not support a claim that Lineberry is subject to

involuntary servitude in violation of the Thirteenth Amendment. See Watson v.

Graves, 909 F.2d 1549, 1552-53 (5th Cir. 1990); 28 C.F.R. §§ 541.13, 545.20.

Lineberry argues that the Bureau of Prison (BOP) policy precluding an

inmate convicted of being a felon in possession of a firearm from completing a

drug program that would make him eligible for earning a one-year reduction of

his sentence overrides the Constitution. At the time of Lineberry’s conviction

and presently, the applicable regulation excluded inmates convicted of being

felons in possession from early release eligibility based on their participation in

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a drug program. See Hadley v. Chapman, 587 F.3d 273-83 (5th Cir. 2009). The

court has rejected arguments that the regulation violated the Equal Protection

or Due Process Clauses. Id. at 280-81. Because Lineberry was sentenced for

being a felon in possession of a firearm in July 2003, he was ineligible for early

release under the rule in effect at the time of his conviction and sentence, and

he remains ineligible for early release under the drug program. See id. at 283.

Lineberry complains about the disciplinary action taken against him while

he was incarcerated at Seagoville and about other conditions at that facility. He

does not deny that he raised these claims in a suit that he filed in the Northern

District of Texas. The district court did not err in dismissing these claims

without prejudice because this court has held that it is “malicious” for a prisoner

proceeding in forma pauperis (IFP) to file a lawsuit that duplicates the

allegations of another pending federal action by the same plaintiff. See Pittman

v. Moore, 980 F.2d 994, 995 (5th Cir.1993).

Lineberry’s appeal is without arguable merit and is thus frivolous. See

Howard v. King, 707 F.2d 215, 219-20 (5th Cir.1983). Because the appeal is

frivolous, it is dismissed. See 5TH CIR. R. 42.2. Based on the dismissal of two of

Lineberry’s prior appeals, the court has recently determined that Lineberry is

barred from proceeding IFP 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 28 U.S.C. § 1915(g); Lineberry v. Stover, No. 09-

40522 (5th Cir. Nov. 17, 2009); Lineberry v. United States, No. 09-10360 (5th Cir.

Nov. 17, 2009). Lineberry remains subject to the § 1915(g) bar.

APPEAL DISMISSED.

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