     Case: 14-31015       Document: 00513302917         Page: 1     Date Filed: 12/10/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                               United States Court of Appeals
                                                                                        Fifth Circuit
                                     No. 14-31015                                     FILED
                                   Summary Calendar                           December 10, 2015
                                                                                 Lyle W. Cayce
                                                                                      Clerk
DONALD RAY VICKS,

                                                  Plaintiff - Appellant

v.

ROBERT TANNER, Warden; KEITH BICKHAM, Assistant Warden;
JOHNNY GERALD, Assistant Warden,

                                                  Defendants - Appellees


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:13-CV-4773


Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       In his pro se 42 U.S.C. § 1983 complaint, Donald Ray Vicks, Louisiana
prisoner # 397218, challenged, inter alia, prison officials’ refusal to exempt him
from a policy requiring inmates housed in extended lockdown to wear
mechanical restraints on their arms and legs during their weekly five hours of
outdoor exercise.      Vicks, who is HIV-positive and diabetic, asserted:                       his



       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 14-31015

medical conditions necessitated more vigorous exercise than the restraints
permit; therefore, defendants’ refusal to exempt him from the restraints policy
constituted cruel and unusual punishment under the Eighth Amendment.
      The district court granted summary judgment against Vicks’ claims.
Proceeding pro se, he contests the court’s:      granting summary judgment;
refusing to conduct a hearing pursuant to Spears v. McCotter, 766 F.2d 179
(5th Cir. 1985), overruled on other grounds by Neitzke v. Williams, 490 U.S.
319, 324 (1989); and denying his motion to appoint counsel.
      A summary judgment is reviewed de novo, “using the same standard as
that employed by the district court”. McFaul v. Valenzuela, 684 F.3d 564, 571
(5th Cir. 2012). Summary judgment must be granted “if the movant shows
that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law”. Fed. R. Civ. P. 56(a). To establish an
Eighth Amendment violation based on the conditions of his confinement, Vicks
must show: the deprivation alleged was “sufficiently serious[,] . . . result[ing]
in the denial of the minimal civilized measure of life’s necessities”; and,
defendants acted with “deliberate indifference to [his] health or safety”.
Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotation marks
omitted). To show a “sufficiently serious” deprivation, Vicks must prove “he is
incarcerated under conditions posing a substantial risk of serious harm”. Id.
      “Although deprivation of exercise is not per se cruel and unusual
punishment, in particular circumstances ‘a deprivation may constitute an
impairment of health forbidden under the eighth amendment.’” Ruiz v. Estelle,
679 F.2d 1115, 1152 (5th Cir. 1982) (quoting Miller v. Carson, 563 F.2d 741,
751 n.12 (5th Cir. 1977)), amended in part, vacated in part on other grounds,
688 F.2d 266 (5th Cir. 1982).       Vicks contends his inability to exercise




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                                 No. 14-31015

unrestrained unconstitutionally impairs his health, which he asserts has
rapidly declined.
      Vicks presents no evidence, however, of a nexus between any
deterioration of his health and defendants’ enforcement of the out-of-cell
restraints policy. A plaintiff’s “unsubstantiated assertions” do not suffice to
demonstrate the existence of a genuine dispute of material fact. See, e.g.,
Carnaby v. City of Houston, 636 F.3d 183, 187 (5th Cir. 2011). Moreover, in
district court, defendants presented uncontested evidence that Vicks’ range of
permitted exercise is limited to walking because his required medication
regimen makes him especially susceptible to heat-related illnesses caused by
overexertion. Vicks did not dispute defendants’ assertion that he is able to
walk in full restraints.
      Vicks fails to show defendants’ refusal to exempt him from the out-of-cell
restraints policy during exercise periods poses a substantial risk of serious
harm or unconstitutionally impairs his health. See Farmer, 511 U.S. at 834;
Ruiz, 679 F.2d at 1152. Accordingly, no genuine dispute of material fact exists
in relation to his Eighth Amendment claim; summary judgment in favor of
defendants was proper. See McFaul, 684 F.3d at 571.
      The court’s refusal to conduct a Spears hearing is reviewed for abuse of
discretion. See Payne v. Parnell, 246 F. App’x 884, 890–91 (5th Cir. 2007). A
Spears hearing is designed to “flesh out the allegations of a prisoner’s
complaint to determine whether . . . the complaint, lacking an arguable basis
in law or fact, should be dismissed summarily as malicious or frivolous”. Eason
v. Holt, 73 F.3d 600, 602 (5th Cir. 1996) (footnote omitted). Vicks’ complaint
presented more than “conclusional allegations”, set out “exactly what scenario
[he] claims occurred”, and identified clearly “the legal basis for the claim”.
Spears, 766 F.2d at 180.        Therefore, his complaint demonstrated his



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constitutional claim, although lacking merit, was not frivolous. See Eason, 73
F.3d at 602. Consequently, the court did not abuse its discretion in failing to
conduct a Spears hearing.
      Similarly, we find no abuse of discretion in the district court’s denying
Vicks’ motion to appoint counsel. See Ulmer v. Chancellor, 691 F.2d 209, 212–
13 (5th Cir. 1982).    Vicks’ complaint advanced a single, straightforward
constitutional claim that was properly dismissed by summary judgment,
thereby precluding a trial. Accordingly, appointment of counsel would not have
advanced the administration of justice. See id. at 213.
      AFFIRMED.




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