Whitman v. Washington , 113 F. App'x 605 ( 2004 )

Menu:

                                                       United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT                 October 27, 2004
Charles R. Fulbruge III
Clerk
No. 03-41520
Summary Calendar
HARRY J. WHITMAN,
Plaintiff-Appellant,
versus
TERRI WASHINGTON; ERNEST C. CHANDLER, Warden; JEFF LOFTIN;
Lieutenant; MIKE COOKSEY; RONALD THOMPSON; R.A. SMITH;
RICHARD ENGELE,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:01-CV-302
--------------------
Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Harry J. Whitman, federal prisoner #23111-037, appeals from
the grant of summary judgment for the defendants in his action
brought pursuant to Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics,

403 U.S. 388

(1971).   He contends that the
district court erred by granting summary judgment on his claims
that the defendants failed to protect him and placed him in
unsuitable conditions of confinement; that he was not barred by
*
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this opinion should not be published and is not precedent except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.
No. 03-41520
-2-
42 U.S.C. § 1997e(e) from obtaining nominal and punitive damages;
that the district court erred by granting summary judgment on his
claim that he was deprived of due process when he was placed in
segregation; that the district court erred by dismissing his
claims against defendant Richard Engele; that the district court
erred by disposing of his case without allowing adequate
discovery; that the district court erred by converting the
defendants’ motion to dismiss his complaint into a motion for
summary judgment; and that the district court erred by denying
his motion for appointment of counsel.    Whitman also moves for
appointment of counsel on appeal; his motion for appointment of
counsel is DENIED.
Whitman had no claim for actual damages on his Eighth
Amendment claims, as he did not allege an actual physical injury.
See Herman v. Holiday,

238 F.3d 660

, 665 (5th Cir. 2001)
(conditions of confinement); Jones v. Greninger,

188 F.3d 322

,
326 (5th Cir. 1999)(failure to protect).    Whitman’s request for
injunctive relief became moot when he was transferred.     See

Herman, 238 F.3d at 665

.   We address the merits of Whitman’s
underlying Eighth Amendment contentions, as Whitman could have
received nominal damages had he prevailed on those contentions in
the district court.   See Williams v. Kaufman County,

352 F.3d 994

, 1014-15 (5th Cir. 2003).
The evidence in the record indicated that the defendants
were not deliberately indifferent to Whitman’s safety during his
No. 03-41520
-3-
stay at the U.S. Penitentiary in Beaumont, Texas.     See Neals v.
Norwood,

59 F.3d 530

, 533 (5th Cir. 1995).    Whitman’s allegations
do not suggest that the conditions of his confinement resulted in
more than de minimis injury to Whitman.     See Smith v. McCleod,

946 F.2d 417

, 418 (5th Cir. 1991).
Whitman’s contention regarding his confinement in
segregation is unavailing.    He had no liberty interest in
remaining outside of segregation.    See Pinchardo v. Kinker,

73 F.3d 612

, 612-13 (5th Cir. 1996).
Whitman’s substantive appellate contentions are unavailing.
Moreover, Whitman does not indicate what claims he made against
Engele in particular or how he could have countered those claims
had he realized that Engele was included in the judgment in the
instant case.   Whitman has not shown that the district court’s
disposition of his claims against Engele constituted reversible
error.   See FED. R. CIV. P. 61 (harmless error).
Given the disposition of Whitman’s underlying substantive
claims, Whitman cannot demonstrate any abuse of discretion
regarding his discovery requests.    See Mayo v. Tri-Bell Indus.,
Inc.,

787 F.2d 1007

, 1012 (5th Cir. 1986).    Whitman’s argument
regarding the conversion of the motion to dismiss into a motion
for summary judgment lacks a factual basis.    The defendants moved
for summary judgment in the alternative to dismissal under Rule
12(b)(6).
No. 03-41520
-4-
Whitman raised run-of-the-mill prisoner civil rights claims
in his action, and his pleadings demonstrated reasonable
competency in presenting those claims.    No appointment of counsel
was necessary.   See Ulmer v. Chancellor,

691 F.2d 209