IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-30074

Summary Calendar

CLARENCE RANDOLPH, JR.,

Plaintiff - Appellant

v.

G. LONDON, Captain; JAMES LEBLANC, Secretary of the Department of

Corrections,

Defendants - Appellees

Appeal from the United States District Court

for the Middle District of Louisiana

USDC No. 3:09-CV-179

Before WIENER, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:

*

Proceeding pro se, Clarence Randolph, Jr., Louisiana prisoner # 480981,

appeals the dismissal of his 42 U.S.C. § 1983 complaint pursuant to Federal

Rules of Civil Procedure 12(b)(6) and 56 and 28 U.S.C. § 1915(e)(2)(B)(i).

Randolph contends the district court erred by: (1) granting summary

judgment on his claims against Secretary LeBlanc based on a lack of exhaustion;

(2) dismissing his claims against Captain London in his official capacity,

United States Court of Appeals

Fifth Circuit

F I L E D

November 3, 2010

Lyle W. Cayce

Clerk

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.

Case: 10-30074 Document: 00511283046 Page: 1 Date Filed: 11/03/2010
No. 10-30074

concluding they were not cognizable under § 1983; (3) dismissing his claims

against Captain London in his individual capacity as frivolous under § 1915(e);

and (4) denying him relief because defendants failed to comply with discovery

orders.

A summary judgment is reviewed de novo. E.g., Cousin v. Small, 325 F.3d

627, 637 (5th Cir. 2003); Powe v. Ennis, 177 F.3d 393, 394 (5th Cir. 1999)

(standard of review for dismissal due to failure to exhaust administrative

remedies de novo). A motion to dismiss being granted pursuant to Rule 12(b)(6)

is likewise reviewed de novo. E.g., Dorsey v. Portfolio Equities, Inc., 540 F.3d

333, 338 (5th Cir. 2008). Dismissal of a claim as frivolous is reviewed for abuse

of discretion. E.g., Black v. Warren, 134 F.3d 732, 734 (5th Cir. 1998). Finally,

discovery rulings are reviewed for abuse of discretion. E.g., Duke v. University

of Texas at El Paso, 729 F.2d 994, 995 (5th Cir. 1984).

The district court was correct in concluding Randolph failed to exhaust his

administrative remedies concerning Secretary LeBlanc’s administrative rulings.

Under 42 U.S.C. § 1997e(a), a prisoner must exhaust administrative remedies

before filing suit. See Jones v. Bock, 549 U.S. 199, 202 (2007). Randolph

presents no evidence supporting his contention there is an exception to this rule

for claims based upon a defendant’s adverse ruling in the administrative-remedy

process. Moreover, Randolph presents no evidence to establish a genuine issue

of material fact on whether he properly exhausted his administrative remedies

against Secretary LeBlanc. Thus, the district court properly granted summary

judgment on this ground. See Cousin, 325 F.3d at 637; Powe, 177 F.3d at 394.

The district court dismissed Randolph’s claims against Captain London in

his official capacity, concluding they were not cognizable under § 1983. Because

Randolph does not specifically challenge this basis for the dismissal, any such

claim is deemed abandoned. See Brinkmann v. Dallas County Deputy Sheriff

Abner, 813 F.2d 744, 748 (5th Cir. 1987).

2

Case: 10-30074 Document: 00511283046 Page: 2 Date Filed: 11/03/2010
No. 10-30074

Randolph’s claims against Captain London in his individual capacity were

based upon allegations of retaliation for filing a grievance. Although Captain

London did not move for dismissal of Randolph’s claims against him in his

individual capacity, the district court properly concluded they were frivolous and

should be dismissed under § 1915(e).

First, Randolph’s allegations of verbal abuse do not rise to the level of a

constitutional violation and may not serve as the basis for § 1983 claims. See

Bender v. Brumley, 1 F.3d 271, 274 n.4 (5th Cir. 1993). To the extent Randolph

asserts Captain London’s profanity rose to the level of retaliation, any such harm

is de minimis. See Morris v. Powell, 449 F.3d 682, 686 (5th Cir. 2006).

Second, Captain London’s alleged failure to follow prison procedures and

regulations for Randolph’s job transfer is insufficient without additional facts to

establish a constitutional violation. See Edwards v. Johnson, 209 F.3d 772, 779

(5th Cir. 2000).

Third, Randolph fails to present “direct evidence of motivation” or “a

chronology of events from which retaliation may plausibly be inferred” in

support of his contention that Captain London transferred Randolph in

retaliation for his refusal to dismiss a grievance against another prison officer.

Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995) (internal quotations and

citations omitted).

Last, the district court concluded Randolph’s allegations of denial of

medical care were not sustainable because there was no evidence Captain

London was responsible for the quality of Randolph’s medical care. Because he

does not dispute this assertion, any such contention is therefore abandoned. See

Brinkmann, 813 F.2d at 748. Moreover, to the extent Randolph contends

Captain London’s actions ultimately endangered him and led to his physical

injuries, Randolph has not established deliberate indifference because he has not

shown Captain London was “aware of facts from which the inference could be

drawn that a substantial risk of serious harm exists” or that Captain London

3

Case: 10-30074 Document: 00511283046 Page: 3 Date Filed: 11/03/2010
No. 10-30074

“also dr[e]w the inference” of harm. Farmer v. Brennan, 511 U.S. 825, 837

(1994).

Randolph makes various allegations that could be construed as assertions

the district court erred in denying him relief because defendants failed to comply

with discovery orders. He contends: he never received copies of his medical

records, in violation of the magistrate judge’s order under Rule 26(a)(1); and

defendants failed to “provide” a request for admissions under Rule 36.

In any event, both assertions would fail. With respect to a claimed

violation of Rule 26(a)(1), seven months passed between filing the discovery

order and issuance of the report and recommendation, and Randolph never filed

a motion to compel discovery as advised by the magistrate judge. Additionally,

given the bases for the district court’s resolution of his medical-care claim, any

error is harmless because Randolph has not shown the records would have

assisted such a claim.

Additionally, Rule 36 does not require a party to request admissions. To

the extent Randolph asserts defendants failed to respond to his request for

admissions, he never made one. To the extent he contends defendants failed to

respond appropriately to his requests for production of documents and

interrogatories, his conclusional assertions of error are insufficient to warrant

relief. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).

AFFIRMED.

4

Case: 10-30074 Document: 00511283046 Page: 4 Date Filed: 11/03/2010