Samuel Reaves v. Richard Voglegesang , 517 F. App'x 233 ( 2013 )

Case: 12-10350 Document: 00512173351 Page: 1 Date Filed: 03/13/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 13, 2013
No. 12-10350
Summary Calendar Lyle W. Cayce
Clerk
SAMUEL REAVES,
Plaintiff-Appellant
v.
RICHARD VOGLEGESANG, Senior Warden;- Preston E. Smith Unit; James
Ramsey, Head of Classification - Preston E. Smith Unit; F. Early, Assistant
Warden - Preston E. Smith Unit; MRS. FRANCO, Building Major -Preston E.
Smith Unit; RICHARD AYNES, Building Captain - Preston E. Smith Unit;
CYNTHIA D. GUYER, Head Mail Room - Preston E. Smith Unit; NFN
LOPEZANO, Mail Clerk - Preston E. Smith Unit,
Defendants-Appellees
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 5:10-CV-44
Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
Samuel Reaves, Texas prisoner # 1069396, filed a civil rights complaint
against seven prison officials. Following a hearing pursuant to Spears v.
McCotter, 766 F.2d 179 (5th Cir. 1985), the magistrate judge recommended that
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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No. 12-10350
the action be dismissed. The district court overruled Reaves’s objection to the
magistrate judge’s report and dismissed the action with prejudice pursuant to
28 U.S.C. § 1915(e)(2) and 42 U.S.C. § 1997e(c)(1).
Reaves argues that it was error for the district court to have dismissed his
complaint with prejudice without providing him an opportunity to amend. His
contention is without merit. Reaves had an opportunity to flesh out his claims
at the Spears hearing at which the magistrate judge responded affirmatively to
Reaves’s request to amend. However, following that hearing he did not file any
amendment to his complaint during the three-and-a-half-months that preceded
the magistrate judge’s report. We will, however, consider the assertions made
in Reaves’s objections to the magistrate judge’s report. See United States v.
Riascos, 76 F.3d 93, 94 (5th Cir. 1996); United States v. Kye Soo Lee, 898 F.2d
1034, 1038 n.6 (5th Cir. 1990).
Our review is de novo. See Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir.
2005). We may affirm the district court’s judgment on any grounds supported
by the record. See Sojourner T v. Edwards, 974 F.2d 27, 30 (5th Cir. 1992).
Reaves asserts that the magistrate judge interrupted him at the Spears
hearing and did not allow him to explain the string of events relevant to his
failure-to-protect claim. He indicates that he could have provided the dates of
the relevant occurrences; however, again, he did not follow up on his request to
provide those dates, and he did not say anything in response to the magistrate
judge’s question: “is there anything else you want to tell me?” Reaves fails by
this argument to show error in the district court’s determination that he has not
stated a failure-to-protect claim. See Neals v. Norwood, 59 F.3d 530, 533 (5th
Cir. 1995).
In the district court, Reaves claimed that he was forced to work in
violation of his medical restrictions. Reaves does not brief this claim on appeal.
Although pro se briefs are afforded liberal construction, even pro se litigants
must brief arguments in order to preserve them. Yohey v. Collins, 985 F.2d 222,
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No. 12-10350
224-25 (5th Cir. 1993). By failing to brief the issue, Reaves has abandoned his
claim. To the extent that Reaves asserts a claim for relief based on being
required to clean up blood spills at his prison unit, although he mentioned this
issue at the Spears hearing, he failed to provide any facts sufficient to support
his claim.
Reaves contends that the district court erred in dismissing his claim that
the defendants were deliberately indifferent to his serious medical needs. His
allegations are that, due to several missing teeth, he has difficulty in eating and
in digesting food, experiences problems with his mouth, and has blood in his
stool. We affirm the district court’s dismissal of this claim because Reaves’s
allegations, taken as true, fail to establish the requisite personal involvement on
the part of the defendants. See Thompson v. Steele, 709 F.2d 381, 382 (5th Cir.
1983).
Reaves claims that employees of the prison mail room failed to send out
his legal mail. As the district court determined, the record reveals no instance
in which Reaves missed a court deadline in this matter. Reaves’s conclusional
assertion that the alleged failure affected events in the instant case is
insufficient to show the requisite actual injury. See Lewis v. Casey, 518 U.S. 343,
354 (1996).
Finally, Reaves contends that the transcript of the Spears hearing has
been altered. Such a contention is properly directed to the district court for
resolution. Kirkpatrick v. Blackburn, 777 F.2d 272, 282 (5th Cir. 1985). Reaves
filed a document in the district court making conclusional allegations about the
accuracy of the transcript and seeking relief, which the district court denied.
“The transcript in any case certified by the reporter or other individual
designated to produce the record shall be deemed prima facie a correct statement
of the testimony taken and proceedings had.” 28 U.S.C. § 753(b). Reaves’s
unsubstantiated assertion on appeal and conclusional assertions in the district
court that the transcript has been altered is “hardly sufficient to overcome the
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No. 12-10350
statutory presumption of accuracy.” Veillon v. Exploration Services, Inc., 876
F.2d 1197, 1201 (5th Cir. 1989).
In view of the foregoing, we affirm the judgment of the district court.
Reaves’s motion for the appointment of counsel is denied as he has not shown
the existence of exceptional circumstances warranting such an appointment. See
Ulmer v. Chancellor, 691 F.2d 209, 212, 213 (5th Cir. 1982). Reaves’s alternative
request for leave to proceed pro se is denied as unnecessary.
The district court’s dismissal of Reaves’s complaint counts as a strike for
purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387
(5th Cir. 1996). Reaves is hereby cautioned that if he accumulates three strikes
he will no longer be allowed to proceed IFP in any civil action or appeal filed
while he is incarcerated or detained in any facility unless he “is under imminent
danger of serious physical injury.” § 1915(g).
AFFIRMED; MOTION FOR THE APPOINTMENT OF COUNSEL
DENIED; MOTION FOR LEAVE TO PROCEED PRO SE DENIED AS
UNNECESSARY; SANCTION WARNING ISSUED.
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