                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 October 9, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-41636
                         Summary Calendar


ROBERT HADDIX, JR.,

                                    Plaintiff-Appellant,

versus

THOMAS KERSS, Sheriff, Nacogdoches County; LELAND HOUSE, Jailer;
GENE GILCREASE, Administrator, Nacogdoches County Sheriff’s
Dept.,

                                    Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                       USDC No. 9:04-CV-105
                       --------------------

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

PER CURIAM:*

     Robert Haddix, Jr., a former pretrial detainee at the

Nacogdoches County Jail, appeals the dismissal of his 42 U.S.C.

§ 1983 complaint as frivolous and for failure to state a claim

upon which relief may be granted under 28 U.S.C. § 1915(e)(2)(B).

The parties consented to proceed before a magistrate judge.

     As an initial matter, we conclude that, contrary to the

appellees’ contention, Haddix’s notice of appeal was timely filed

from the magistrate judge’s order of dismissal.   Haddix filed a

     *
       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this opinion should not be published and is not precedent except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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                                -2-

motion for reconsideration on November 10, 2004, 10 countable

days after the entry of judgment.     See FED. R. CIV. P. 6(a).   The

30-day time limit for filing a notice of appeal did not begin to

run until the disposition of this motion on November 16, 2004.

See FED. R. CIV. P. 4(a)(4)(A).   Haddix’s notice of appeal, filed

on November 29, 2004, was timely.

     Haddix first argues that the magistrate judge who conducted

the evidentiary hearing made various errors during the hearing,

including: (1) considering jail records that allegedly were

altered and lacked a certificate of correctness; (2) allowing

only the defendants to present evidence and witnesses; and (3)

engaging in ex parte communication with defense counsel.      If the

magistrate judge erred, such errors were harmless because Haddix

has failed to state a claim upon which relief may be granted.

     We review Haddix’s claims de novo.     See Geiger v. Jowers,

404 F.3d 371, 373 (5th Cir. 2005).     We accept as true all the

allegations of the complaint, considering them in the light most

favorable to the plaintiff.     Ashe v. Corley, 992 F.2d 540, 544

(5th Cir. 1993).

     “The constitutional rights of a pretrial detainee . . . flow

from both the procedural and substantive due process guarantees

of the Fourteenth Amendment.”     Hare v. City of Corinth, 74 F.3d

633, 639 (5th Cir. 1996) (en banc).     Claims based upon a jail

official’s “episodic acts or omissions” are reviewed under the

standard of subjective deliberate indifference enunciated in
                           No. 04-41636
                                -3-

Farmer v. Brennan, 511 U.S. 825 (1994).    “[A] prison official may

be held liable under the Eighth Amendment for denying humane

conditions of confinement only if he knows that inmates face a

substantial risk of serious harm and disregards that risk by

failing to take reasonable measures to abate it.”    Farmer, 511

U.S. at 847.

     Haddix has not shown that he faced a “substantial risk of

serious harm” from the occasional denial of pain medication or

delay in transferring him to a lower bunk.   The result of the

defendants’ actions was unrelieved, pre-existing, back and

shoulder pain, not a worsening of his condition or other serious

harm.   See Mayweather v. Foti, 958 F.2d 91, 91 (5th Cir. 1992)

(stating continuing back pain, while unpleasant, does not

demonstrate a constitutional violation).   Haddix also has not

shown that the defendants were deliberately indifferent to his

needs for other medical treatment.   Although he may not have

received the amount of treatment he felt necessary, such a claim

constitutes a disagreement with medical staff, which is not

actionable in a § 1983 proceeding.   See Varnado v. Lynaugh, 920

F.2d 320, 321 (5th Cir. 1991).

     Haddix’s excessive-force claims are analyzed under the same

standard applicable to an Eighth Amendment excessive-force claim.

Jackson v. Culbertson, 984 F.2d 699, 700 (5th Cir. 1993).     The

plaintiff bears the burden of showing: “(1) an injury (2) which

resulted directly and only from the use of force that was
                             No. 04-41636
                                  -4-

excessive to the need and (3) the force used was objectively

unreasonable.”     Glenn v. City of Tyler, 242 F.3d 307, 314 (5th

Cir. 2001).   Although a showing of “significant injury” is no

longer required, this court does “require a plaintiff asserting

an excessive force claim to have suffered at least some form of

injury.”   Id. (internal quotation omitted).

     Haddix alleged that, in an effort to wake him, Corporal Cole

once “slapped my feet”; however, Haddix did not allege any

specific injury.    The use of this amount of force is not

objectively unreasonable.     See Hudson v. McMillian, 503 U.S. 1, 9

(1992) (noting that not every “malevolent touch by a prison guard

gives rise to a federal cause of action”).     Haddix also alleged

that Corporal House once kicked him in the ankle to awaken him.

Haddix alleged he suffered pain, but he did not allege that he

suffered pain for any length of time or that he sought any

medical treatment.    Such a non-specific assertion of injury

supports a finding that any injury was de minimis.     See Siglar v.

Hightower, 112 F.3d 191, 193 (5th Cir. 1997) (finding sore ear

lasting for three days constituted a de minimis injury);

Alexander v. Tippah County, 351 F.3d 626, 631 (5th Cir. 2003)

(temporary nausea was, at most, de minimis injury).    Haddix also

alleges in his brief that Corporal House once slammed a steel

door, which struck Haddix in the chest and arm; as this claim is

raised for the first time on appeal, we decline to consider it.

See Burch v. Coca-Cola Co., 119 F.3d 305, 319 (5th Cir. 1997).
                           No. 04-41636
                                -5-

     Haddix also asserted that on another occasion, Corporal Joey

Mullins left the gates in solitary confinement open, which

allowed several other inmates to threaten and rob Haddix.

Haddix’s resulting claim of deliberate indifference is purely

speculative.   Even accepting as true Haddix’s assertion that

Mullins deliberately left the gates open, Haddix has not alleged

that Mullins, or any other jail official, knew that this would

lead to several other inmates threatening and robbing him.    He

has failed to show that officials knew this action presented a

serious risk of harm and that they disregarded this serious risk

of harm.   See Farmer, 511 U.S. at 847.

     Haddix’s appellate brief also asserts that various

defendants conspired to retaliate against him, in violation of

his First Amendment right of access to the courts, for filing

various civil suits against other persons before he entered the

jail.   Haddix acknowledges this claim was not specifically

pleaded in his complaint, but he asserts he would have added this

claim if he had been allowed to submit an amended complaint.

Haddix’s complaint and evidentiary hearing testimony alleged

sufficient facts to raise a retaliation claim.   See Adams v.

Hansen, 906 F.2d 192, 194 (5th Cir. 1990) (hearing was “in the

nature of an amended complaint or a more definite statement”).

     Although the magistrate judge did not address retaliation,

the magistrate judge’s failure to do so was harmless error

because Haddix has failed to state a valid retaliation claim.      To
                            No. 04-41636
                                 -6-

substantiate a claim of retaliation, “[t]he inmate must produce

direct evidence of motivation or, the more probable scenario,

allege a chronology of events from which retaliation may

plausibly be inferred.”    Woods v. Smith, 60 F.3d 1161, 1166 (5th

Cir. 1995) (internal quotation marks omitted).     “The relevant

showing in such cases must be more than the prisoner’s personal

belief that he is the victim of retaliation.”     Johnson v.

Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997) (internal quotation

marks omitted).   Haddix has not produced direct evidence of a

retaliatory motive; in addition, as his other civil suits were

filed before he entered the jail and did not attack any named

defendant, he has not alleged a chronology of events from which

retaliation may plausibly be inferred.     His retaliation claims

consist of nothing more than his “personal belief that he is the

victim of retaliation.”    Johnson, 110 F.3d at 310.

     In his appellate brief, Haddix alleges that various

defendants are liable for jail policies or for failing to

properly supervise other jail employees.     However, Haddix did not

allege any theory of supervisory liability in his initial

complaint, and he made only a single brief reference to an

alleged “ongoing policy” of cruelty to inmates during the

evidentiary hearing.   As Haddix’s claims of supervisory liability

appear to be raised for the first time on appeal, we decline to

consider them.    See Burch, 119 F.3d at 319.
                           No. 04-41636
                                -7-

     Finally, Haddix argues that the magistrate judge erred by

denying his motion for reconsideration.   Arguably, the denial of

this motion is not properly before the court because Haddix’s

notice of appeal specified only the underlying judgment.       See

Warfield v. Fidelity and Deposit Co., 904 F.2d 322, 325 (5th Cir.

1990).   However, even if he had specified the motion for

reconsideration in his notice of appeal, Haddix does not present

sufficient argument on this issue on appeal.    See Yohey v.

Collins, 985 F.2d 222, 225 (5th Cir. 1993).    Therefore, we

decline to address this issue.

     AFFIRMED.
