     Case: 11-40309     Document: 00511731826         Page: 1     Date Filed: 01/20/2012




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

                                                                            FILED
                                                                         January 20, 2012
                                     No. 11-40309
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

ROBERT TROY MCCLURE,

                                                  Plaintiff-Appellant

v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE CORRECTIONS
DEPARTMENT; WARDEN DAVID HUDSON; WARDEN JEFFERY CALFEE;
MRS. CHEQUITA DUNBAR; MRS. TORI SCOTT, Food Service Manager
Captain; SERGEANT KELLY MAY, Safe Prison Department,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                              USDC No. 5:10-CV-66


Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
        Robert Troy McClure, Texas prisoner # 1420457, appeals the district
court’s grant of summary judgment to the defendants on grounds of qualified
immunity. Because this case is not particularly complex, and McClure has not
shown himself incapable of presenting his appeal, his motion for appointment



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-40309

of appellate counsel is DENIED. See Cooper v. Sheriff, Lubbock County, Tex.,
929 F.2d 1078, 1084 (5th Cir. 1991).
      Generally, we review a grant of summary judgment de novo. Dillon v.
Rogers, 596 F.3d 260, 266 (5th Cir. 2010). However, because McClure did not file
specific objections to the MJ’s report and recommendations, despite being
warned, we review the factual findings and legal conclusions accepted by the
district court for plain error. See Douglass v. United Serv. Auto. Ass’n, 79 F.3d
1415, 1428-29 (5th Cir. 1996) (en banc); FED. R. CIV. P. 72(b)(2) (requiring
specific objections). To show plain error, McClure must show a forfeited error
that is clear or obvious and that affects his substantial rights. See Puckett v.
United States, 129 S. Ct. 1423, 1429 (2009). Even if he makes such a showing,
we have the discretion to correct the error but only if it “seriously affect[s] the
fairness, integrity, or public reputation of judicial proceedings.” Id. (internal
quotation marks and citation omitted).
      Summary judgment is proper “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). However, “[a] qualified immunity
defense alters the usual summary judgment burden of proof.”                Brown v.
Callahan, 623 F.3d 249, 253 (5th Cir. 2010), cert. denied, 131 S. Ct. 2932 (2011).
While the defendant official must initially assert the defense, “[o]nce the
defendant has done so the burden shifts to the plaintiff to rebut this defense by
establishing that the official’s allegedly wrongful conduct violated clearly
established law.” Bazan ex rel. Bazan v. Hidalgo Cnty., 246 F.3d 481, 489 (5th
Cir. 2001).
      When qualified immunity is raised as a defense, the threshold question is
“whether, taking the facts in the light most favorable to the plaintiff, the officer’s
alleged conduct violated a constitutional right.” Lytle v. Bexar County, Tex., 560
F.3d 404, 410 (5th Cir. 2009). Whether the evidence supports the conclusion
that a constitutional right was violated is a legal question. Hampton Co. Nat.

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Sur., LLC v. Tunica County, Miss., 543 F.3d 221, 225 (5th Cir. 2008). If the
court determines that there was a constitutional violation, the court moves to
the second step, which involves “determining whether the law was sufficiently
clear that a reasonable officer would have known that his conduct violated the
constitution.” Lytle, 560 F.3d at 410. We have the discretion to decide which
prong of the qualified immunity analysis will be addressed first. See Pearson v.
Callahan, 555 U.S. 223, 236 (2009).
      The summary judgment evidence does not show that any prison officials
denied or deprived McClure of a mattress. It shows that, to the extent McClure
had no mattress, it was because he did not like the quality of the one offered to
him, not because the prison refused to provide him with a mattress.
Accordingly, there was no constitutional violation.
      McClure argues that Warden Hudson knowingly forced him to live with
mentally ill, deranged prisoners who are housed, untreated, in administrative
segregation. McClure makes no argument and points to no summary judgment
evidence showing that Warden Hudson knew of the conditions about which
McClure complains or that he deliberately disregarded an excessive risk to
human health or safety. See Farmer v. Brennan, 511 U.S. 825, 837 (1994)
(explaining that the official must know of the risk of harm and disregard the
risk). McClure’s argument that Hudson should have known of the conditions
does not rise to the level of a constitutional violation. See id. at 838.
      The magistrate judge (MJ) did not address the denial of access to courts
issue that McClure raises on appeal--that defendant Dunbar denied him access
to the courts when she denied him the legal assistance of jailhouse lawyers that
he needed to file with the “federal court” a “petition of actual innocence.”
Because McClure does make any argument that the district court failed to
address this claim, he has abandoned such argument. See Yohey v. Collins, 985
F.2d 222, 224-25 (5th Cir. 1993); Brinkmann v. Dallas County Deputy Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987). Additionally, because he could have

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raised this failure to address in his objections to the MJ’s report, but did not, any
review would be for plain error.       See Douglass, 79 F.3d at 1428-29. The
summary judgment evidence, specifically, his grievances show that McClure
requested a visit with inmate Pate to appeal to the U.S. Supreme Court. As the
defendant’s argued, McClure’s claim that the denial of the legal visit prevented
him from filing a freestanding actual innocence petition is unexhausted. See 42
U.S.C. § 1997e(a) (requiring exhaustion of administrative remedies); see also
Woodford v. Ngo, 548 U.S. 81, 101 (2006) (noting that exhaustion is mandatory
but not jurisdictional). Accordingly, McClure cannot show that the district court
plainly erred by not addressing this claim.
      McClure contends that defendants Calfee and May knew that his life was
in danger from prison gang members but, acting out of malice or deliberate
indifference, they refused to transfer him to another prison and, instead, moved
him with in the Teleford Unit. The summary judgment evidence shows that
McClure’s claims that he was threatened were investigated and that the Unit
Classification Committee found insufficient evidence to transfer him. This
evidence does not show that Calfee or May acted with deliberate indifference to
alleged threats against McClure. See Farmer, 511 U.S. at 837-38.
      To the extent McClure alleged that he was not fed according to the prison’s
policy or that defendant Scott otherwise violated policy by feeding prison
employees better than inmates, these allegations failed to establish a
constitutional violation. See Samford v. Dretke, 562 F.3d 674, 681 (5th Cir.
2009). His detailed list of foods shows that he was not deprived of any meals and
that he was served a protein, vegetables and/or fruit, bread, and a beverage with
almost every meal. Even if McClure lost weight while he was in administrative
segregation (ad-seg), the medical records do not indicate that any weight loss
was due to an insufficient caloric intake, malnutrition, or a vitamin deficiency.
McClure’s summary judgment evidence failed to establish that the portions sizes
or calories he was served daily were so inadequate as to deny him the “minimal

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civilized measure of life’s necessities.”     See Farmer, 511 U.S. at 834.
Additionally, McClure provided no summary judgment evidence to support his
claim that he was fed half-portions as punishment for being in ad-seg or that
such portions were so inadequate that they amounted to a “deprivation of food
constitut[ing] cruel and unusual punishment.” See id. He also submitted no
evidence showing that the allegedly unsanitary treatment of the serving trays
caused him to become ill or was so disgusting as to amount to cruel and unusual
punishment. See id. Thus, the district court did not err in concluding that
McClure had not shown by competent summary judgment evidence that he was
being denied “the minimal civilized measure of life’s necessities.” See id.
      The district court’s judgment is AFFIRMED.




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