David Flores, Jr. v. Robert Fortner, et al

Filing

UNPUBLISHED OPINION FILED. [10-10280 Affirmed ] Judge: WED , Judge: JES , Judge: LHS Mandate pull date is 01/18/2011 [10-10280]

David Flores, Jr. v. Robert :Fortner, et al Document: 00511332890 Case 10-10280

Page: 1 Date Filed: 12/27/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-10280 S u m m a r y Calendar December 27, 2010 Lyle W. Cayce Clerk

D A V I D FLORES, JR., P la in t if f -A p p e lla n t v. B R A D LIVINGSTON, Director Texas Department of Criminal Justice-ID; D A V I D E. FONDREN, Smith Unit Assistant Warden; FRED C. EARLY, Smith U n it Assistant Warden; ARLENE A. FRANCO, Smith Unit Major Supervisor; R O B E R T O R. GUTIERREZ, Smith Unit Captain Supervisor; DAVID A R E L L A N O , Sergeant Supervisor Smith Unit; SYLVIA C. SAUSEDA, Sergeant S u p e r v i s o r Smith Unit; JEFFREY NARBAEZ, Sergeant Supervisor Montford U n it; OLIVER VASQUEZ, Correctional Officer Smith Unit; SHANE M A R T I N E Z , Smith Unit Facility Health Administrator, Defendants-Appellees

A p p e a ls from the United States District Court fo r the Northern District of Texas U S D C No. 5:09-CV-171

B e fo r e DAVIS, SMITH, and SOUTHWICK, Circuit Judges. P E R CURIAM:*

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

Case: 10-10280 Document: 00511332890 Page: 2 Date Filed: 12/27/2010 No. 10-10280 D a v id Flores, Jr., Texas prisoner # 1350652, appeals from the magistrate ju d g e 's judgment, partially dismissing his civil rights complaint as frivolous and fo r failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A(b) and 42 U .S . C . § 1997e(c). Our review is de novo. See Geiger v. Jowers, 404 F.3d 371, 3 7 3 (2005). Flores raises a number of claims in his appellate brief that were not a d d r e s s e d at the Spears1 hearing, including: (1) conspiracy and "cover-up" to v io la t e his civil rights, (2) denial of access to courts, (3) denial of freedom of s p e e c h , (4) denial of Freedom of Information/Privacy Act, and (5) punitive use of m e c h a n ic a l restraints or handcuffs for non-punitive past conduct. Because F lo r e s did not raise these allegations at the Spears hearing, they were not p r o p e r ly before the magistrate judge and will not be addressed on appeal. See R ile y v. Collins, 828 F.2d 306, 307 (5th Cir. 1987) (allegations at Spears hearing s u p e r s e d e allegations of complaint). Flores challenges the MJ's dismissal of his claims of deliberate indifference t o serious medical needs. The Supreme Court has adopted "subjective

r e c k le s s n e s s as used in the criminal law" as the appropriate test for deliberate in d iffe r e n c e . See Farmer v. Brennan, 511 U.S. 825, 839-41 (1994). A prison o ffic ia l acts with deliberate indifference "only if he knows that inmates face a s u b s t a n t ia l risk of serious harm and disregards that risk by failing to take r e a s o n a b le measures to abate it." Id. at 847. A delay in treatment does not v io la t e the Eighth Amendment unless there has been deliberate indifference t h a t results in substantial harm. See Mendoza v. Lynaugh, 989 F.2d 191, 195 (5 t h Cir. 1993). Flores has not shown that the magistrate judge erred in

d is m is s in g his deliberate indifference claims against Vasquez, Narbaez, S a u s e d a , Arellano, and Fortner because Flores's allegations do not reflect that

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Spears v. McCotter, 766 F.2d 179 (1985).

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Case: 10-10280 Document: 00511332890 Page: 3 Date Filed: 12/27/2010 No. 10-10280 a n y delay in his receipt of medical treatment for his wrists, shoulder, or tooth r e s u lt e d in substantial harm. See id. Although the magistrate judge allowed Flores's retaliation claim against F o r t n e r to proceed, Flores's brief nonetheless addresses the issue of retaliation, a r g u in g that the magistrate judge should have addressed his retaliation claim w it h respect to all of the named defendants and in light of the totality of the c ir c u m s t a n c e s and the evidence supporting his "allegations of complicity and c o v e r -u p ." Because Flores did not allege a retaliation claim at the Spears

h e a r in g against any defendant besides Fortner, the magistrate judge did not err in declining to address a claim of retaliation against any other defendant. See R ile y , 828 F.2d at 307. Flores argues that his rights to due process and equal protection were v io la t e d when officers failed to adequately investigate the incident at the time t h a t it happened and during the grievance process. Flores had no

c o n s t it u t io n a lly protected interest in having his grievances resolved to his s a t is fa c t io n . See Geiger, 404 F.3d at 373-74. Even if Flores had a constitutional r ig h t to an impartial investigator during the grievance process, Flores's claims o f impartiality are conclusional. See Bell Atlantic Corp. v. Twombly, 550 U.S. 5 4 4 , 555 (2007) " [A ] violation of equal protection occurs only when the government treats s o m e o n e differently than others similarly situated . . . ." Brennan v. Stewart, 8 3 4 F.2d 1248, 1257 (5th Cir. 1988). Flores did not allege that he was treated d iffe r e n t ly from similarly situated prisoners with respect to the investigation of t h e incident or of the grievances or that the defendants engaged in purposeful d is c r im in a t io n ; thus, his complaint failed to state an equal protection claim, and t h e magistrate judge did not err in dismissing this claim. Flores challenges the magistrate judge's dismissal of his failure-tot r a i n / s u p e r v is e claims. The plaintiff must demonstrate the personal

in v o lv e m e n t of the defendant in the denial of constitutional rights or a causal 3

Case: 10-10280 Document: 00511332890 Page: 4 Date Filed: 12/27/2010 No. 10-10280 lin k between the defendant's conduct and the deprivation. Roberts v. City of S h r e v e p o r t, 397 F.3d 287, 292 (5th Cir. 2005). For a supervisor to be liable u n d e r § 1983, the plaintiff must show that (1) the supervisor failed to supervise o r train the subordinate official; (2) a causal link exists between the failure to t r a in or supervise and the constitutional violation; and (3) the failure to train or s u p e r v is e amounts to deliberate indifference to the plaintiff's constitutional r ig h t s . Id. Flores's allegations do not reflect that a failure to train or supervise a m o u n t e d to deliberate indifference. See Roberts, 397 F.3d at 292. Flores argues that TDCJ-CID has improperly classified him as a member o f a Security Threat Group in violation of his constitutional rights. A prisoner h a s no liberty interest in his custodial classification. See Hernandez v.

V e la s q u e z , 522 F.3d 556, 562-64 (5th Cir. 2008). Flores's allegations concerning h is detention in administrative segregation do not come close to the allegations in Wilkinson v. Austin, 545 U.S. 209, 223-24 (2005), in which the Supreme Court h e ld that the conditions in Ohio's "Supermax" facility were so restrictive that a lib e r t y interest was implicated. The magistrate judge did not err in dismissing F lo r e s 's due process challenge to his custodial classification. The magistrate judge did not abuse her discretion in denying Flores's m o t io n s for the appointment of counsel. See Cupit v. Jones, 835 F.2d 82, 86 (5th C ir . 1987). T h e judgment of the magistrate judge is AFFIRMED. We DENY Flores's r e q u e s t s (1) for an evidentiary hearing by this court, (2) for an order for a M a r t in e z Report, (3) for appointment of counsel, (4) for an order that TDCJ-CID c o r r e c t records to reflect that Flores is not a member of a STG, and (5) for a d e c la r a tio n by this court that the Prison Litigation Reform Act is

u n c o n s t it u t io n a l.

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