Kelly v. Caudillo ( 2023 )

Case: 23-10330 Document: 00516885832 Page: 1 Date Filed: 09/06/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 23-10330
Summary Calendar FILED
____________ September 6, 2023
Lyle W. Cayce
Jacob James Kelly, Clerk
Plaintiff—Appellant,
versus
Olivia Caudillo; David Dyer; Cody Parker; Charles
Miller, III; FNU LNU, One Unknown OIG Investigator; FNU
Vasquez, Captain; FNU Garces; Eight Unknown TDCJ-CID
Officers,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:21-CV-175
______________________________
Before Jones, Southwick, and Ho, Circuit Judges.
Per Curiam: *
Jacob James Kelly, Texas prisoner # 118728, filed a 42 U.S.C. § 1983suit naming fifteen defendants, all employees of the Texas Department of
Criminal Justice (TDCJ) Preston E. Smith Unit. These defendants included
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 23-10330
(1) Lieutenant Olivia Caudillo; (2) Major David Dyer; (3) Assistant Warden
Cody Parker; (4) Lieutenant Charles Miller; (5) Unknown Office of the
Inspector General (OIG) Investigator; (6) Captain FNU Vasquez;
(7) Property Officer FNU Garces; and (8) Eight Unknown Correctional
Officers. Kelly seeks monetary damages as well as injunctive relief. The
district court dismissed most of Kelly’s claims under 28 U.S.C.
§ 1915(e)(2)(B)(ii), issuing a final judgment pursuant to Rule 54(b) of the
Federal Rules of Civil Procedure. The court did, however, stay his claim
against Miller and ordered that his claim against Vazquez proceed. Kelly
filed a timely notice of appeal. He also moves this court for the appointment
of counsel on appeal.
Because the district court dismissed some of Kelly’s § 1983 claims for
failure to state a claim under § 1915(e)(2)(B)(ii), we review that ruling under
the same de novo standard that applies to a dismissal under Federal Rule of
Civil Procedure 12(b)(6). See Black v. Warren, 134 F.3d 732, 733–34 (5th Cir.
1998). “We accept all well-pleaded facts as true and view those facts in the
light most favorable to the plaintiff.” Whitley v. Hanna, 726 F.3d 631, 637
(5th Cir. 2013). Nonetheless, a complaint will not proceed unless it
“contain[s] sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal quotation marks and citation omitted).
Many of Kelly’s claims center around the argument that prison
officials failed to protect him. To state a viable constitutional claim for failure
to protect, a plaintiff must show: (1) he was subjected to conditions posing a
substantial risk of serious harm; and (2) prison officials were deliberately
indifferent to his need for protection. Neals v. Norwood, 59 F.3d 530, 533 (5th
Cir. 1995).
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No. 23-10330
Kelly first argues that three unknown prison guards failed to protect
him from his cellmate. However, Kelly did not allege facts supporting his
claim that the guards acted with deliberate indifference to a known
substantial risk of harm. See Neals, 59 F.3d at 533. His claim that the guards
discriminated against him when one guard told him to “man up” is
unpersuasive because he offers only conclusory beliefs in support of his
claim. See Priester v. Lowndes Cnty., 354 F.3d 414, 420, 423 (5th Cir. 2004).
Regarding his failure to protect claim against Caudillo, Kelly does not allege
any physical injury as a result of her order that he be housed with his alleged
extorter. Accordingly, this claim is unavailing. See Jones v. Greninger, 188
F.3d 322, 326 (5th Cir. 1999). He likewise fails to state a claim that Caudillo
is liable for Miller’s alleged excessive force under a supervisory liability
theory. See Goodman v. Harris Cnty., 571 F.3d 388, 395 (5th Cir. 2009);
Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir. 1987).
The district court did not err when it stayed Kelly’s excessive force
claim against Miller. See Heck v. Humphrey, 512 U.S. 477, 486–87 (1994).
Moreover, Kelly’s claim that Assistant Warden Parker, Major Dyer, and the
unknown OIG investigator failed to investigate his claims adequately fails
because a prisoner “does not have a federally protected liberty interest in
having . . . grievances resolved to his satisfaction.” Geiger v. Jowers, 404 F.3d
371, 374 (5th Cir. 2005). Concerning his claim against Garces and five
unknown officers, he has waived it because he has failed to substantively brief
his argument. Yohey v. Collins, 985 F.2d 222, 224–25 (5th Cir. 1993). Finally,
the appointment of counsel on appeal is not warranted. See Ulmer v.
Chancellor, 691 F.2d 209, 212, 213 (5th Cir. 1982).
Accordingly, the judgment of the district court is AFFIRMED.
Kelly’s motion for the appointment of counsel is DENIED.
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