IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT _______________

No. 96-10688 Summary Calendar _______________

PAUL EDWARD NEAL,

Plaintiff-Appellant,

VERSUS

S.D. WILLIAMS, et al.,

Defendants-Appellees.

_________________________

Appeal from the United States District Court for the Northern District of Texas (CR-H-92-92-2) _________________________

October 29, 1996 Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Paul Neal appeals the dismissal, as frivolous under

(d), of his pro se prisoner’s civil rights suit brought

pursuant to

. We affirm in part and vacate and

remand in part.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. I.

In the suit, Neal raised numerous complaints regarding his

employment in a shoe factory operated at TDCJ Clements Unit.1 He

named numerous defendants, including the factory manager and the

unit warden. In addition to monetary damages, he sought injunctive

and other prospective relief. The parties consented to proceed

before the magistrate judge, who conducted a hearing pursuant to

Spears v. McCotter,

(5th Cir. 1985), then dismissed

the suit as frivolous under § 1915(d),2 concluding that none of

Neal’s claims had merit.

II.

Neal argues that the dismissal was in error because the

magistrate judge misconstrued some of his claims and failed to

address others. An in forma pauperis complaint that lacks an

arguable basis in law or fact may be dismissed as frivolous

pursuant to § 1915(d). Eason v. Thaler,

(5th Cir.

1994). We review a § 1915(d) dismissal for abuse of discretion.

Booker v. Koonce,

(5th Cir. 1993).

1 Although Richard McCoy also was listed as a plaintiff and signed the complaint, the magistrate judge determined that McCoy was not a plaintiff when the case was opened and denied a subsequent motion by Neal to consolidate his complaint with a similar one filed by McCoy. The magistrate judge’s action is questioned by Neal as an issue on appeal, and we address it below.

2 Section 804 of the Prison Litigation Reform Act,

Stat. 1321 (1996), redesignated § 1915(d) as § 1915(e)(2)(B)(i).

2 A.

Neal argues that he is in fear of violence and becoming a

victim of robberies and burglaries because of the shoe factory’s

requirement that inmates work overtime. He argues that, because

inmates must work overtime if the shoe factory’s “quotas” are not

met, some “inmates resort to violence in order to try to convince

others to stop working.” He raises a similar claim with regard to

the fact that he is not paid for his work, asserting that because

the inmates are not paid, they are forced to steal from each other.

Prison officials have a duty under the Eighth Amendment to

protect inmates from violence at the hands of other prisoners.

Farmer v. Brennan,

, ___,

(1994).

But not every injury “by one prisoner at the hands of another . . .

translates into constitutional liability for prison officials

responsible for the victim’s safety.”

. To

prove an Eighth Amendment violation, “the inmate must show that he

is incarcerated under conditions posing a substantial risk of

serious harm,” and the prison official’s state of mind must be one

of “deliberate indifference” to the inmate’s health or safety.

A prison official is deliberately indifferent if he is “aware of

facts from which the inference could be drawn that a substantial

risk of harm exists” and draws that inference. Id. at 1979.

In his complaint, Neal outlined the “threatening situation”

caused by the administration’s overtime and refusal-to-pay

3 policies. He also made a general statement, at the end of his

complaint, that “[w]ith respect to the above claims it is alleged

that all defendants . . . knew or should have known that their

actions would serve to violate the rights and protections of

Plaintiff under law.”

At the Spears hearing, McCoy testified that the defendants

were creating a “dangerous and threatening situation by working us

on weekends or working us overtime.” McCoy averred that he had, as

witnesses, “a couple of guys that got in a[n] altercation and

others that have been threatened.” Id. The magistrate judge asked

McCoy why the inmates would be threatened, and McCoy replied:

Well, if the[y] make a[n] announcement in the shoe factory on Friday that they are going to be required to work Saturday or the[y] will receive disciplinary if they don’t, then a lot of guys really resent that and they get in little groups and . . . . They try to get and convince other guys to go with them, because they know if they need a lot of unity in order to make an impact, to make an impression. So, the guys that don’t want to go along with the group naturally are threatened or they catch them later over in the . . . housing area, or . . . out by the shoe factory dumpster area or something like that. The[y] do a number on them so they will . . . stay . . . with the inmates.

Neal has failed to present facts to suggest that the defen-

dants either knew, or had reason to know, that the overtime and no-

pay policies created a substantial risk to his safety. Other than

the unsupported assertions that the defendants’ policies caused a

threat of violence, Neal presented nothing to suggest that the

defendants were aware of facts from which the inference of

4 potential harm could be drawn, or that they drew such an inference.

Moreover, assuming that plaintiff McCoy’s Spears testimony can

be considered for the purposes of Neal’s appeal, nothing in the

testimony indicates that the defendants were deliberately in-

different to inmate safety. McCoy’s testimony suggests that any

assault on an inmate for his failure to “strike” was made outside

the presence of the defendants. Thus, there is no indication that

the defendants knew or had reason to know that the overtime policy

created a “threatening situation.” Moreover, the connection

between any threat of violence Neal might experience because

inmates steal from one another and the fact that inmates are not

paid for their labor is too attenuated to suggest deliberate

indifference.

B.

Neal also argues that the magistrate judge failed to address

his assertion that solitary confinement is excessive punishment for

refusing to work. Neal does not, however, argue that he has

refused to work or been given solitary confinement. Neal does not

have standing to raise this claim.

C.

Neal argues that the magistrate judge misconstrued his claim

that the conditions at the shoe factory violated OSHA safety

5 regulations, because the thrust of “the complaint was based upon a

violation of protections from cruel and unusual punishment.” He

argues that the magistrate judge’s rejection of his claim based on

a determination that OSHA did not create a private right of action

“misses the mark completely.”

The Eighth Amendment prohibits the imposition of prison

conditions that constitute “cruel and unusual punishment.”

Hamilton v. Lyons,

(5th Cir. 1996) (citations

omitted), i.e., the “wanton and unnecessary infliction of pain [or

if they are] grossly disproportionate to the severity of the crime

warranting imprisonment,

Neal’s allegations challenging the

conditions of confinement are subject to the “deliberate in-

difference” standard. Wilson v. Seiter,

(1991).

Thus, he must establish that the defendants knew that he faced a

substantial risk of serious harm and disregarded that risk by

failing to take reasonable measures to abate it. See Farmer,

,

.

Neal testified that he gets headaches every day that he works

at the factory; McCoy testified that polyvinyl chloride ("PVC"), a

compound used at the factory, is a known carcinogen. The safety

officer at the factory testified that the PVC compound “has been

reported to cause cancer in laboratory animals if they are given it

orally, if they eat it[,]” but argued that such was “the only way

that you are going to be injured by this material.” The safety

6 officer further testified that, although the effects of over-

exposure to PVC vapors can be mildly irritating to some persons,

the problem was controlled by proper ventilation at the factory.

The officer admitted, however, there was a time when the factory

had problems with ventilation because the “Desmas” was producing

excess smoke. Regarding such, McCoy testified that he remembered

the “Desmas” “blowing-up” seven times in one day.

Although the magistrate judge indicated that the plaintiffs’

allegations might require an answer by the defendants, he dismissed

the complaint without addressing the Eighth Amendment claim.

Neal’s exposure to the conditions arguably poses an unreasonable

risk of serious damage to his health, and Neal alleged facts that

could establish deliberate indifference. See Farmer,

,

; Helling v. McKinney,

(1993) (exposure to environmental tobacco smoke).

Because Neal’s claim was not factually or legally frivolous,

we vacate and remand for further factual development. We empha-

size, however, that we express no opinion as to what ultimate

decision the court should make; we only require further factual

inquiry, after which the magistrate judge can decide whether there

was deliberate indifference to any condition that existed.

D.

Neal argues that the magistrate judge failed to address his

7 claim that shoe factory workers were discriminated against because

they must work overtime while other inmates do not. Shoe factory

workers apparently must work overtime if they do not make “quota”;

otherwise, they work a regular five-day week.3 The Spears testi-

mony was imprecise as to whether all other prison work groups had

similar quota requirements.

The equal protection clause of the Fourteenth Amendment

essentially is a mandate that all persons similarly situated must

be treated alike. Rolf v. City of San Antonio,

(5th Cir. 1996). Equal protection is assured against all kinds of

invidious state action, even those discriminations that do not

encroach on liberty or property. Johnson v. Pfeiffer,

(5th Cir. 1987). In Johnson, the plaintiff claimed that

prison writ writers were denied equal protection because they were

given harsher treatment in parole consideration than was given to

other similarly situated TDCJ inmates.

. We

reversed the dismissal of the claim, noting that Johnson’s

allegations raised suggestions of invidious, group-based discrimi-

nation.

.

Similarly, Neal’s allegation that the shoe factory workers are

forced to work harder than other similarly situated workers because

3 Neal also argues that the defendants’ use of quotas is a violation of the decree in Ruiz v. Estelle,

(5th Cir. 1982). Violations of the Ruiz decree, without more, are not cognizable in a § 1983 cause of action. Green v. McKaskle,

(5th Cir. 1986). Thus, insofar as Neal raises this argument as a separate claim, it is without merit.

8 they must meet quota demands raises suggestions of invidious,

group-based discrimination. Nothing that is now in the record

provides a rational basis for this allegedly differing treatment.

See Rolf,

(holding that because neither a suspect

class nor a fundamental right is involved, the “rational basis”

standard of review is appropriate). The magistrate judge erred by

not addressing this claim. Accordingly, we vacate and remand,

again without suggesting what decision should be reached after

factual development.

E.

Neal complains that the magistrate judge severed the complaint

he had intended to file jointly with McCoy. He argues that the

magistrate judge further erred by refusing to “reconsolidate” the

complaints. He also contends that he intended his complaint to be

a class action lawsuit.

The decision whether to sever or consolidate is within the

magistrate judge’s discretion. See Dillard v. Merrill Lynch,

Pierce, Fenner & Smith, Inc.,

(5th Cir. 1992)

(refusal to consolidate), cert. denied,

(1993);

Hammons v. Adams,

(5th Cir. 1986) (severance).

The magistrate judge’s apparent rationale for severing the cases,

and then denying Neal’s motion to consolidate, was “because of

security in the courtroom and the need for each Plaintiff to

9 represent himself.” Such was not an abuse of discretion. Neal’s

assertion that he intended for his complaint to be a class action

is frivolous, as he did not move for or otherwise request certifi-

cation of a class.

With the exception of his Eighth Amendment and equal protec-

tion claims, none of Neal’s claims has merit.4 Accordingly, we

AFFIRM the dismissal of those claims. See Sojourner T. v. Edwards,

(5th Cir. 1992) (holding that court may affirm

judgment on any basis supported by the record), cert. denied,

(1993). The dismissal of the Eighth Amendment and

equal protection claims is VACATED and REMANDED.

4 A dismissal pursuant to § 1915(d) may be made prior to service on the defendants. See Boyd v. Biggers,

(5th Cir. 1994). Thus, Neal’s assertion that the magistrate judge erred by failing to serve the defendants is without merit.

10