          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                  Fifth Circuit

                                                                FILED
                                                            December 10, 2007
                               No. 06-30540
                             Summary Calendar              Charles R. Fulbruge III
                                                                   Clerk

STEVEN AUBREY BURNETTE

                                          Plaintiff-Appellant

v.

BUREAU OF PRISONS; HARLEY LAPPIN; RONALD G THOMPSON;
ROBERT TAPIA; FREDERICK MENIFEE; J T RATHMAN; FREDERICK
JEFFERSON; BRUCE FREAS; DR PASSAO; RANDY BRANDT; HENRY
BOWERS; MR BYNUM; MR TAYLOR; STEPHEN DIXON; DIANE PRUETT
DIXON; B BORDELON; JOHN TRENEY; ELEZAR GARCIA; MILTON B
WHITE

                                          Defendants-Appellees


                 Appeal from the United States District Court
                    for the Western District of Louisiana
                           USDC No. 1:05-CV-1804


Before KING, DAVIS, and CLEMENT, Circuit Judges
PER CURIAM:*
      Steven Aubrey Burnette, federal prisoner # 08307-084, filed a lawsuit
pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971), complaining that his civil rights were violated


      *
      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should not be published and is not precedent except under the limited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. 06-30540

when federal Bureau of Prisons (BOP) employees placed him and another
prisoner in a “strip-cell” at the Special Housing Unit (SHU) at the federal prison
in Pollock, Louisiana.    In addition to seeking $16.35 million in damages,
Burnette sought injunctive relief.
      The magistrate judge (MJ) assigned to the case reviewed Burnette’s
pleadings and recommended that all of Burnette’s claims be dismissed with
prejudice as frivolous and for failing to state a claim upon which relief can be
granted under 28 U.S.C. § 1915(e)(2)(B)(i) and (ii). The district court concurred
with the MJ’s reasoning and denied and dismissed Burnette’s lawsuit. Burnette
timely filed a notice of appeal.
      We review the dismissal of a complaint under § 1915(e)(2)(B)(i) as frivolous
for abuse of discretion, Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005), and
we review the dismissal of a complaint under § 1915(e)(2)(B)(ii) for failure to
state a claim under the same de novo standard of review applicable to dismissals
made pursuant to FED.R.CIV.P. 12(b)(6). Harris v. Hegmann, 198 F.3d 153, 156
(5th Cir. 1999); see also In re Katrina Canal Breaches Litigation, 495 F.3d 191,
205 (5th Cir. 2007) (de novo review of dismissal for failure to state a claim using
revised FED. R. CIV. P. 12(b)(6) standard). Because the district court referred
to both sections of the statute when it dismissed Burnette’s complaint, review
here is de novo. See Geiger, 404 F.3d at 373.
      Burnette first contends that the conditions of his confinement in an SHU
“strip-cell” violated his rights under the Eighth Amendment, which protects
inmates from cruel and unusual punishment and imposes a duty on prison
officials to “ensure that inmates receive adequate food, clothing, shelter, and
medical care.”    Farmer v. Brennan, 511 U.S. 825, 832 (1994).           Treating
Burnette’s allegations as “true (even if doubtful in fact)” under the FED. R. CIV.
P. 12(b)(6) standard set forth in Bell Atlantic Corp. v. Twombly, Burnette’s
pleadings contain “enough facts to state a claim to relief that is plausible on its
face” with respect to some of the BOP officials named in his lawsuit. Bell Atl.

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Corp. v. Twombly, 127 S. Ct. 1955, 1965,         1974 (2007).   According to his
pleadings, Burnette was forced to share a trash bag as a toilet with an inmate
who was mentally unstable, and Burnette could not escape the smell or leaking
of the bagged sewerage in his indoor cell because BOP officials refused to allow
the cell-mates to remove the bagged sewerage and sealed the cell door with tape.
In a similar case, we found that less egregious deprivations of toilet facilities
during a prisoner’s outdoor confinement stated a prima facie claim under the
Eighth Amendment. See Palmer v. Johnson, 193 F.3d 346, 352-53 (5th Cir.
1999).
      Burnette also alleged that several prison officials either ordered the
conditions of his confinement in the SHU strip-cell or were aware of but
deliberately indifferent to those conditions. Burnette alleged that Lt. Henry
Bowers made good on an earlier threat by ordering Burnette’s confinement in
the strip-cell under the conditions described in Burnette’s pleadings. Burnette
alleged that Capt. Federick Jefferson authorized the conditions of Burnette’s
detention in the strip-cell. Burnette also stated that on October 17, 2004,
Associate Warden J.T. Rathman observed the “inhumane conditions” of
Burnette’s confinement, but after interviewing Burnette in a separate room,
Rathman ordered Burnette’s return to the strip-cell. On October 19 and 20,
2004, the institutional duty officer, Bruce Freas, became aware of the conditions
of Burnette’s confinement, indicated his disapproval, and stated that he would
file a complaint to the Warden, but Burnette alleges that Freas failed to do so.
Thus, Burnette alleged “‘enough facts to state a claim to relief that is plausible
on its face’” with respect to his claims against Lt. Bowers, Capt. Jefferson,
Associate Warden Rathman, and Duty Officer Freas regarding the conditions of
his strip-cell confinement. In re Katrina Canal, 495 F.3d at 205 (quoting Bell
Atl. Corp., 127 S. Ct. at 1974); see also Palmer, 193 F.3d at 352-53. For similar
reasons, these claims do not lack “an arguable basis in law or fact.” Berry, 192
F.3d at 507. Accordingly, we vacate the district court’s judgment in part and

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remand for further consideration of these claims. By contrast, Burnette’s
allegations of Eighth Amendment violations by Lt. Garrows, Lt. Bynum, and Dr.
Gallager do not meet these standards, and the dismissal of those claims is
affirmed.
      Burnette also argues that the district court erred in dismissing his claims
regarding deliberate indifference to his medical and psychological needs, but
these claims are frivolous. Burnette alleged that Dr. N. Pasao and Chief
Psychologist Randy Brandt failed to treat him properly, but records that
Burnette submitted with his pleadings show that Burnette was treated by Dr.
Pasao and visited by Brandt on the dates in question. Accordingly, Burnette was
not denied care, and his allegations, at most, “amount to a disagreement” with
his treatment and “fall short of a constitutional or federal claim.” Varnado v.
Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991); see also Domino v. Tex. Dep’t of
Criminal Justice, 239 F.3d 752, 755 (5th Cir. 2001). Moreover, Burnette does
not identify any harm that resulted from any denial or delay of medical or
psychological treatment. See Mendoza v. Lynaugh, 989 F.2d 191, 195 (1993).
Therefore, the district court’s dismissal of Burnette’s claims concerning the
denial or delay of medical and psychological care as frivolous and for failure to
state a claim was not erroneous and will be affirmed.
      Burnette contends that the district court erred in dismissing his
retaliation claims. Burnette alleged that in response to his objections regarding
the addition of inmates to his cell, BOP staff by shut off his water, cancelled his
recreation privileges, confiscated his bedding and reading materials, and began
writing retaliatory and unwarranted incident reports against Burnette. Thus,
Burnette alleged “‘enough facts to state a claim to relief that is plausible on its
face’” with respect to his retaliation claims. In re Katrina Canal, 495 F.3d at 205
(quoting Bell Atl. Corp., 127 S. Ct. at 1974); see Woods v. Smith, 60 F.3d 1161,
1164-66 (5th Cir. 1995). For similar reasons, these claims do not lack “an
arguable basis in law or fact.” Berry, 192 F.3d at 507. Accordingly, we vacate

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the district court’s judgment in part and remand for further consideration of
Burnette’s retaliation claims.
      Because Burnette’s brief on appeal does not address the district court’s
denial of his motions for a temporary restraining order, for appointment of
counsel below, for an evidentiary hearing, or for leave to amend his complaint
a second time, any objections to the denial of these motions are deemed
abandoned. See Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995) (holding that
although pro se briefs are liberally construed, even pro se litigants must brief
arguments in order to preserve them); Yohey v. Collins, 985 F.2d 222, 225 (5th
Cir. 1993) (same). The MJ did not specifically consider Burnette’s allegations
that prison officials failed to protect him from fellow inmates, violated his due
process rights in disciplining him, and adopted culpably unconstitutional
policies. While his pleadings indicate that he may have intended to bring such
claims, Burnette did not brief these issues or the MJ’s failure to consider them,
and they, too, are deemed abandoned. See Grant, 59 F.3d at 524. For the first
time on appeal, Burnette attempts to raise claims regarding sexual assaults by
a physician assistant named “Mr. Herren” and by a cell-mate, claims under the
Convention Against Torture, and allegations regarding obstruction of justice.
Because we typically do not consider claims that are raised for the first time on
appeal, Yohey, 985 F.2d at 225, we decline to consider these claims.
      Finally, Burnette seeks appointment of counsel on appeal, but because this
litigation presents no “exceptional circumstances,” the motion is denied. Ulmer
v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982).
      For the foregoing reasons, the judgment of the district court is AFFIRMED
with respect to Burnette’s Eighth Amendment claims against Lt. Garrows, Lt.
Bynum, and Dr. Gallager, and his claims regarding the denial or delay of
medical and psychological care. The judgment is VACATED as to the Eigth
Amendment claims against Lt. Bowers, Capt. Jefferson, Associate Warden
Rathman, and Duty Officer Freas, as well as the retaliation claims, and this

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matter is REMANDED to the district court for further proceedings consistent
with this opinion. The motion for appointment of counsel on appeal is DENIED.




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