* 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that this opinion should not be published and is not precedent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. 01-11009

Conference Calendar

 

ALLEN GLENN THOMAS,

Plaintiff-Appellant,

versus

CHERI R. PERRY, Correctional Officer III; RICHARD A. AVANTS,

Captain; MARIO V. SANCHEZ, Sergeant; ROBERT KELLEHER, Grievance 

Investigator; EMILY L. BOND, Assistant Warden; JOE D. TRUMBO,

Sergeant,

Defendants-Appellees.

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

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 1:00-CV-31

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

April 10, 2002

Before SMITH, DeMOSS, 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 wherein he alleged that several of the defendants had

conspired to retaliate against him for filing grievances, and had

violated his right to due process in connection with a

disciplinary action. 
No. 01-11009

-2-

 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. 

 Thomas argues that the district court impermissibly

dismissed his complaint based on credibility determinations and

that the court should have required the defendants to answer the

complaint in order to resolve factual disputes. The record does

not, however, support Thomas’s assertion that the dismissal of

his complaint was based on credibility determinations. Nor does

the record support his assertion that the district court resolved

factual disputes against him. 

 Thomas also argues that the district court abused its

discretion by failing to view his complaint as asserting a denial

of due process based on a violation of the TDCJ policy

prohibiting the filing of disciplinary actions based on a

retaliatory motive. To state a claim of retaliation, Thomas must

show, inter alia, that the complained of incident would not have

occurred absent the retaliatory motive. See Johnson v.

Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997). Thomas fails to do

so in this case. Thomas’s assertion that he was not allowed to

confront and cross-examine adverse witnesses at the disciplinary
No. 01-11009

-3-

hearing, and his assertion that the disciplinary captain excluded

evidence fail because Thomas has not shown that his disciplinary

conviction has been overturned or otherwise declared invalid. 

See Clarke v. Stalder, 154 F.3d 186, 189 (5th Cir. 1998)(en

banc)(citing Edwards v. Balisok, 520 U.S. 641, 646 (1997)). The

judgment of the district court is AFFIRMED. All outstanding

motions are DENIED.