And speculation is insufficient. See, e.g., Hoffman v. Stulga, 464 Fed.Appx. 229, 232 (5th Cir. 2011) (“His claims of conspiracy amount to nothing more than speculation.”); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (“Factual allegations must be enough to raise a right to relief above the speculative level.”)
Questionnaire 19. Such an assertion does not satisfy the third element. See Hoffman v. Stulga, 464 F. App'x 229, 232 (5th Cir. 2011) (explaining that prisoner's "claim of retaliation fails because he [did] not show that the defendants engaged in any retaliatory act beyond threats"); Bell v. Woods, 382 F. App'x 391, 393 (5th Cir. 2010) (holding that prisoner "ha[d] not stated a retaliation claim because he . . . alleged only a threat, but no retaliatory adverse act"). Concerning Defendant Orneles's purported failure to provide Rogers with her security officer number, this denial does not rise to the level of an adverse act because he does not allege that he was in any way injured or harmed as a result.
Such an assertion does not satisfy the third element. See Hoffman v. Stulga, 464 F. App'x 229, 232 (5th Cir. 2011) (explaining that prisoner's "claim of retaliation fails because he [did] not show that the defendants engaged in any retaliatory act beyond threats"); Bell v. Woods, 382 F. App'x 391, 393 (5th Cir. 2010) (holding that prisoner "ha[d] not stated a retaliation claim because he . . . alleged only a threat, but no retaliatory adverse act"). Thus, the District Judge should dismiss Handsaker's retaliation claim.
Harris's release from incarceration during the pendency of this case does not alleviate the filing requirements of 28 U.S.C. § 1915 or the Court's ability to dismiss under § 1915. See Hoffman v. Stugla, 464 F. App'x 229, 231 (5th Cir. 2011) (affirming dismissal of former prisoner's § 1983 complaint under § 1915(e)(2)); Gay v. Tex. Dep't of Corr., 117 F.3d 240, 241-42 (5th Cir. 1997) (holding released prisoner required to comply with filing requirements of § 1915(a)(2)). To complete his in forma pauperis application, the Order [10] directed Harris to "file a certified copy of his inmate trust fund account statement (or institutional equivalent) for the 6-month period immediately preceding the filing of this Complaint obtained from the appropriate official of each prison or jail at which Plaintiff was confined."
Voris further asserts that Sergeant Dudley threatened to remove Voris from the GRAD program. Voris does not allege that he was actually returned to administrative segregation or removed from the GRAD program, only that the threat was made. The Fifth Circuit has held that a mere threat of future action is not a retaliatory adverse act. Bell v. Woods, 382 F. App'x 391, 393 (5th Cir. 2010) (citing Jones, 188 F.3d at 324-25); Hoffman v. Stulga, 464 F. App'x 229, 2011 WL 5119532 (5th Cir. 2011). See Morris v. Powell, 449 F.3d 682, 684 (5th Cir. 2006).
Johnson's threadbare allegations fall short of the Lynch standard. See also Hoffman v. Stulga, 464 Fed.Appx. 229, 232 (5 Cir. 2011)("[N]one of the facts asserted by [plaintiff] show that the defendants conspired and agreed to deprive him of his constitutional rights."); Du Bois v. Warne, 336 Fed.Appx. 407, 409 (5 Cir. 2009)("Although [plaintiff] couches her claims in terms of a conspiracy, her conclusory charges are unsupported by specific factual allegations and are insufficient to state a constitutional violation under § 1983."); Spence v. Hood, 170 Fed.Appx. 928, 931 (5 Cir. 2006)(plaintiff's "conclusional allegations of conspiracy are not sufficient to support a claim under § 1983" and "do not establish liability on the part of the defendants in their individual capacities"). Additionally, Johnson cannot meet the elements required to prove a conspiracy.
ECF No. 11, 3–4. Although some courts have found no Eighth Amendment protection for those on parole release, see Bradley v. New Jersey State Parole, No. 06–5255, 2007 WL 1876492, at *3 (D.N.J. June 27, 2007) (finding no viable claim where the plaintiff was allegedly harassed by officers who came to his home during a period of parole release rather than incarceration), or those disciplined in public school, see Marsh v. Delaware State Univ., No. 05–00087, 2006 WL 141680, at *3 (D.Del. Jan. 19, 2006) (finding no claim alleged when a public school expels a student because he was not incarcerated), others have recognized that the door is not closed to such an assertion, see Hoffman v. Stulga, 464 Fed.Appx. 229, 232 (5th Cir.2011) (per curiam) (assuming without deciding that the Eighth Amendment's protections could apply to felons on probation while upholding dismissal of plaintiff's claim based on other parts of the Eighth Amendment analysis); Coulter v. Studeny, No. 12–60, 2012 WL 4857039, at *1 (W.D.Pa. Oct. 12, 2012) (explaining that the plaintiff “provides no citations to any legal authority indicating that conditions of probation can give rise to an Eighth Amendment claim,” but proceeding to dismiss the count on different Eighth Amendment grounds).
Knatt v. Hospital Serv. Dist. No. 1, 289 Fed. App'x 22, 33 (5th Cir. 2008) (quoting Lynch v. Cannatella, 810 F.2d 1363, 1370 (5th Cir. 1987)). See also Hoffman v. Stulga, 464 Fed. App'x 229, 232 (5th Cir. 2011) ("[N]one of the facts asserted by [plaintiff] show that the defendants conspired and agreed to deprive him of his constitutional rights."); Du Bois v. Warne, 336 Fed. App'x 407, 409 (5th Cir. 2009) ("Although [plaintiff] couches her claims in terms of a conspiracy, her conclusory charges are unsupported by specific factual allegations and are insufficient to state a constitutional violation under § 1983."); Spence v. Hood, 170 Fed. App'x 928, 931 (5th Cir. 2006) (plaintiff's "conclusional allegations of conspiracy are not sufficient to support a claim under § 1983").
Thus, Section 1915(e)(2) applies to the instant case. See Hoffman v. Stulga, 464 F. App'x 229, 231 (5th Cir. 2011) (affirming dismissal of former prisoner's § 1983 complaint under § 1915(e)(2)). The Court finds that English does not have a viable claim for a constitutional deprivation against Defendant MDOC. To maintain a § 1983 civil action, a plaintiff must show that a "person" acting under color of state law deprived him of a right secured by the Constitution or the laws of the United States. See Daniel v. Ferguson, 839 F.2d 1124, 1128 (5th Cir. 1988).
They correctly noted that the ultimate question of whether an officer's actions are taken to inflict unnecessary and wanton pain and suffering ultimately turns on whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm. Whitley v. Albers, 475 U.S. 312, 320 (1986). They argued that the Plaintiff has not shown that they used force maliciously or sadistically to harm him and that he cannot prevail on an excessive use of force claim against them. They further argued that they are entitled to summary judgment because the Plaintiff suffered no injury or, at most, only a de minimis injury. Hudson v. McMillian, 503 U.S. at 9-10; Hoffman v. Stulga, 464 Fed. Appx. 229, 232 (5th Cir. 2011); Williams v. Bramer, 180 F.3d 699, 703 (5th Cir. 1999). The Defendants' discussion of the case law involving excessive use of force claims was accurate as to general principles.