Spence v. Morris

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 95-10124
Conference Calendar
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DONALD LEE SPENCE,
Plaintiff-Appellant,
versus
CHUCK MORRIS ET AL.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 7:93-CV-132-X
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June 28, 1995
Before JONES, WIENER, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
In his prolix, disorganized, and difficult-to-decipher
appellate brief, Appellant Donald Lee Spence has listed 11 issues
for review (several are repeated), including: (1) a
discrimination claim based on an allegation that the Defendants
refused to sign his § 1983 complaint, (2) an allegation that the
Defendants adumbrated the evidence of the case, (3) a claim that
the district court purposefully caused Spence to miss a filing
deadline, (4) an allegation that the policy of treating white
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
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pretrial detainees differently from convicted prisoners resulted
in malicious discrimination against Spence, and (5) a claim that
the Defendants violated a contract with another county to provide
care for inmates. As these issues were neither raised nor
reviewed below, they need not be addressed.
The relevant issues Spence has addressed on appeal, which
were presented below, can be placed in three categories: (1) a
claim that his transfer from cell five was cruel and unusual
punishment, (2) a deliberate-indifference claim arising from his
assignment in cell eight, and (3) a claim that pretrial detainees
receive preferential treatment. Spence challenges the district
court's dismissal of his suit pursuant to FED. R. CIV. P. 12(b)(6)
for failure to state a claim.
"In reviewing a Rule 12(b)(6) dismissal, this court accepts
all well pleaded averments as true and views them in the light
most favorable to the plaintiff." Cooper v. Sheriff, Lubbock
County, Tex., 929 F.2d 1078, 1082 (5th Cir. 1991) (citation,
internal quotation, and alteration omitted). Such a dismissal
will not be upheld "unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which
would entitle him to relief." Id. (citation and internal
quotations omitted).
The transfer of Spence out of cell number five did not
occasion any constitutional violation. "[P]rison officials have
the authority to transfer an inmate to more restrictive quarters
for non-punitive reasons." Mitchell v. Sheriff Dep't, Lubbock
County, 995 F.2d 60, 63 (5th Cir. 1993). Spence has not stated
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any facts that would indicate that the Defendants had a punitive
motive for transferring him or that the place to which he was
transferred was more restrictive.
Spence's statement that he was made to sleep on the floor
also fails to state a claim. To state a claim of deliberate
indifference, Spence needed to allege that he was deprived of a
basic human need--the minimal civilized measure of life's
necessities. See Harris v. Angelina County, Texas, 31 F.3d 331,
334 (5th Cir. 1994). Spence has not alleged such a deprivation.
At most, he complained that he was not comfortable when moved
outside of his preferred cell for a time. The constitution does
not require comfortable prisons. Farmer v. Brennan, 114 S. Ct.
1970, 1976, (1994).
Spence's allegation regarding the preferential treatment
accorded to pretrial detainees does not raise a constitutional
issue. Pretrial detainees are afforded a different level of
treatment from that due convicted prisoners. "[T]he due process
clause of the fourteenth amendment accords pretrial detainees
rights not enjoyed by convicted inmates under the eighth
amendment prohibition against cruel and unusual punishment."
Cupit v. Jones, 835 F.2d 82, 84 (5th Cir. 1987).
The district court did not err in dismissing Spence's suit.
The decision is AFFIRMED.
Spence has moved this court to allow him to supplement the
record on appeal with information regarding a contract for care
of prisoners between Baylor and Wichita Counties. This
information was not presented to the district court. As we "will
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not ordinarily enlarge the record on appeal to include material
not before the district court," Spence's motion is DENIED.
United States v. Flores, 887 F.2d 543, 546 (5th Cir. 1989)
(citation omitted).