Flores v. Fox, et al

Filing

UNPUBLISHED OPINION FILED. [09-40159 Affirmed ] Judge: TMR , Judge: JLD , Judge: EBC Mandate pull date is 11/01/2010 [09-40159]

Flores v. Fox, et al

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Case: 09-40159

Document: 00511229719

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Date Filed: 09/10/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-40159 S u m m a r y Calendar September 10, 2010 Lyle W. Cayce Clerk

T E R E S A FLORES, as executrix of the Estate of Hector Flores, substituted in p la c e and stead of Hector Flores, deceased, P la in t if f -A p p e lla n t v. J O H N FOX, Warden; GONZALEZ, Captain; G MALDONADO, JR., Regional D ir e c t o r ; TERRY STACHER, Unit Manager; SWAIN, Special Investigative S u p e r v is o r ; NYLON, Counselor; RUSSO, Special Investigative Supervisor; B W R I G H T , Counselor; ARSINGER, Counselor; SUTTON, CMC, D e fe n d a n t s -A p p e lle e s

A p p e a l from the United States District Court fo r the Eastern District of Texas U S D C No. 1:08-CV-285

B e fo r e REAVLEY, DENNIS, and CLEMENT, Circuit Judges. P E R CURIAM:* H e c t o r Flores,1 federal prisoner # 45506-080, proceeding pro se and in fo r m a pauperis (IFP), filed this civil rights complaint against numerous federal

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

Teresa Flores, Hector Flores's sister, was substituted as the appellant upon Hector's

death.

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p r is o n officials employed at the federal prison in Beaumont, Texas, alleging that t h e defendants have willfully and intentionally failed to maintain an accurate p r is o n file on him, resulting in adverse effects. The district court construed F lo r e s 's civil action as filed pursuant to the Privacy Act, 5 U.S.C. § 552a, and d is m is s e d his complaint for failure to state a claim upon which relief could be g r a n t e d under 28 U.S.C. § 1915(e)(2)(B)(ii). The district court determined that u n d e r the Privacy Act, a prisoner was not entitled to injunctive relief to correct a lle g e d ly inaccurate records and that a civil action under the Privacy Act could b e brought against an agency, but that individuals were not liable for damages. F lo r e s argues that the district court erred in dismissing his complaint for fa ilu r e to state a claim. For the first time on appeal, Flores alleges facts

u n d e r ly in g an Eighth Amendment claim for failure to protect and deliberate in d iffe r e n c e , which is the subject of separate litigation in Flores v. Lappin, N o . 1:08-cv-202. Flores argues that he should have been allowed to amend his c o m p la in t . Flores also argues that he was denied due process and that he had a liberty interest in his custodial classification. He states that his lawsuit seeks c o r r e c t io n of his prison records and monetary damages from the individual d e fe n d a n t s who have caused him irreparable mental and physical harm. U n d e r § 1915(e)(2)(B)(ii), a district court must dismiss a prisoner's IFP c iv il rights complaint if it determines that the action fails to state a claim upon w h ic h relief may be granted. See Black v. Warren, 134 F.3d 732, 733-34 (5th Cir. 1 9 9 8 ). A dismissal for failure to state a claim is reviewed de novo. Id. F lo r e s 's claim for injunctive relief to correct his prison records, even if he c o u ld amend to state a claim, is mooted by his death. See Rhodes v. Stewart, 488 U .S . 1, 4 (1988) (holding that death of prisoner mooted claim for injunctive relief s e e k in g modification of prison policy); Copsey v. Swearingen, 36 F.3d 1336, 1339 n .3 (5th Cir. 1994) (stating that claims for injunctive and declarative relief m o o t e d by death).

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T h e district court properly dismissed Flores's claims for damages against t h e individual defendants because only agencies may be sued under the Privacy A c t . See Connelly v. Comptroller of the Currency, 876 F.2d 1209, 1215 (5th Cir. 1 9 8 9 ). An amendment to name the agency as the proper defendant would have b e e n futile because in 2002, the BOP promulgated regulations exempting its I n m a t e Central Records System from § 552a(e)(5) and from § 552a(g), the civil r e m e d ie s provision. See 28 C.F.R. § 16.97(a)(4), (j); see also Martinez v. Bureau o f Prisons, 444 F.3d 620, 624 (D.C. Cir. 2006) (affirming dismissal of Privacy Act c la im for damages because records exempt from accuracy provisions). F lo r e s 's constitutional claims under the Eighth and Fifth Amendments a g a in s t the individual federal employees are properly construed as claims b r o u g h t pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau o f Narcotics, 403 U.S. 388 (1971). Flores alleged the facts underlying his Eighth A m e n d m e n t claim for deliberate indifference for the first time in his appellate b r ie f. These facts form the basis for his Eighth Amendment claim in his

s e p a r a t e lawsuit in Flores v. Lappin. New claims not raised in the district court n e e d not be addressed for the first time on appeal. Williams v. Ballard, 466 F.3d 3 3 0 , 335 (5th Cir. 2006). Thus, we do not address Flores's Eighth Amendment c la im . A s for his Fifth Amendment due process argument, Flores mentioned the F ifth Amendment generally in his complaint. In his objections to the magistrate ju d g e 's report, he did not complain that the magistrate judge had failed to a d d r e s s his Fifth Amendment claim. Review is for plain error because Flores d id not object to the magistrate judge's report on this basis, despite having been w a r n e d that the failure to object would result in plain error review of his c o n t e n t io n s on appeal. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1 4 2 8 -2 9 (5th Cir. 1996) (en banc). Given that Flores made a single reference to t h e Fifth Amendment in his complaint without further elaboration of the facts a n d failed to mention his Fifth Amendment claim in his objections, Flores has 3

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n o t shown an error that is clear or obvious. See Puckett v. United States, 129 S . Ct. 1423, 1429 (2009). T h e district court did not err in dismissing Flores's complaint for failure t o state a claim. See Black, 134 F.3d at 733-34. A F F IR M E D .

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