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

                                                 FILED
                                                                         November 5, 2009

                                     No. 08-11211                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



SADIQ OLASUNKANMI ADELEKE

                                                   Plaintiff - Appellant
v.

JASON HEATON, Warden; DANIEL HINSON, Assistant Warden; AMY
RAMOS, Captain; STEVEN FLECKENSTEIN, Officer

                                                   Defendant - Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 1:08-CV-55


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
       Sadiq Olasunkanmi Adeleke (“Adeleke”), Texas prisoner # 792196, appeals
the district court’s dismissal of his 42 U.S.C. § 1983 civil rights complaint as
frivolous and for failure to state a claim. For the reasons stated below, we
affirm.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-11211



                               I. BACKGROUND
      Adeleke, proceeding pro se and in forma pauperis, filed a civil rights
complaint pursuant to 42 U.S.C. § 1983 against Warden Jason Heaton,
Assistant Warden Daniel Hinson, Captain Amy Ramos, and Officer Steven
Fleckenstein (collectively “prison officials”), complaining about the conditions of
confinement in the John Wallace Unit of the Texas Department of Criminal
Justice, Institutional Division.
      In his complaint, as developed by his extensive testimony, Adeleke alleged
that during an incident on October 12, 2007, Officer Fleckenstein wrote three
disciplinary cases against him for refusing to obey an order, being out of place,
and using indecent or vulgar language after finding him by the sink in the day
room. Adeleke alleged that Officer Fleckenstein demanded his identification
card while his back was to him and spun him around by the shoulder to again
ask for his identification card. After the incident, Adeleke alleged that he felt
pain in his shoulder and used Tylenol for two or three days after the incident,
but that the pain disappeared after a few days and he did not seek medical
attention.
      Adeleke’s three disciplinary cases were graded by Captain Ramos as major
disciplinary cases. To help him with his case, Adeleke was assigned a counsel
substitute. Captain Brooks, the disciplinary hearing officer, dismissed two of the
cases and found Adeleke guilty of using vulgar language, which was a lesser
offense. Adeleke was sanctioned with a reprimand. He did not appeal the case,
although he filed a grievance about the alleged assault by Officer Fleckenstein.
      In his complaint, Adeleke alleged that he was subjected to retaliation by
Officer Fleckenstein for filing a grievance in relation to the October 12, 2007
incident. He also alleged that he was subjected to excessive force insofar as



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Officer Fleckenstein grabbed his shoulder, and he was deprived of due process
of law because his case was graded as a major disciplinary case.
       As a result of having a major disciplinary case, Adeleke was transferred
from one housing unit to an allegedly more dangerous and restrictive housing
unit. This transfer was approved by Captain Ramos. On December 4, 2007, a
fight occurred in the exercise yard of Adeleke’s new housing unit. After the
fight, Warden Heaton ordered that the entire unit be placed on lockdown for
several months while prison officials conducted an investigation into the fight.
While on lockdown, Adeleke was unable to have family members visit and had
to eat sack lunches and other such meals.
       In his complaint, Adeleke alleged that Warden Hinson and Warden
Heaton subjected him to cruel and unusual punishment in the form of the
lockdown for several months, the denial of visitation with his family members
during lockdown, and being forced to eat sack lunches.
       Adeleke’s complaint was transferred to the magistrate judge who held a
hearing pursuant to Spears v. McCotter, 766 F.2d 179, 181-82 (5th Cir. 1985).
In his report and recommendation, the magistrate judge recommended that all
Adeleke’s claims against the prison officials be dismissed as frivolous and for
failure to state a claim, with the exception of his retaliation claim against Officer
Fleckenstein.1 This appeal followed.
                                     II. DISCUSSION
       A.     Standard of Review
       A prisoner’s civil rights complaint should be dismissed if it is frivolous,
malicious, or fails to state a claim upon which relief may be granted. 28 U.S.C.
§ 1915A(b)(1). We review a district court’s § 1915A dismissal de novo. See Ruiz

       1
          Adeleke’s retaliation claim against Officer Fleckenstein has since been dismissed by
the district court. Adeleke’s appeal of that dismissal is currently pending before another panel
of this court in case number 09-10830. Nothing in this opinion should be construed as opining
on the merits of that appeal.

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v. United States, 160 F.3d 273, 275 (5th Cir. 1998). A complaint brought by a
prisoner proceeding in forma pauperis may also be dismissed as frivolous when
it lacks an arguable basis in law or fact. 28 U.S.C. § 1915(e)(2)(B)(I); Hutchins
v. McDaniels, 512 F.3d 193, 195 (5th Cir. 2007). Such dismissals are reviewed
for abuse of discretion. Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999).
Because the magistrate judge referred to both § 1915A and § 1915(e) when he
recommended dismissing Adeleke’s suit as frivolous, the court will review the
issues raised on appeal de novo. Velasquez v. Woods, 329 F.3d 420, 421 (5th Cir.
2003).
         To avoid dismissal for failure to state a claim, a plaintiff ’s complaint must
plead enough facts to “state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, __ U.S. __, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L.
Ed. 2d 929 (2007). The factual allegations must “raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555. While pro se complaints are held
to less stringent standards than those drafted by lawyers, “conclusory
allegations or legal conclusions masquerading as factual conclusions will not
suffice to prevent a motion to dismiss.” Taylor v. Books A Million, Inc., 296 F.3d
376, 378 (5th Cir. 2002).
      B.       Eighth Amendment Claims
      Adeleke argues that the district court erred by dismissing his Eighth
Amendment claims against the prison officials as frivolous. He maintains that
he was subjected to cruel and unusual punishment by being transferred from one
housing unit to an allegedly more dangerous and restrictive housing unit, being
subjected to lockdown upon arrival in the new unit, being denied visitation of his
family members while on lockdown, and by being forced to eat sack lunches
while on lockdown. Adeleke also argues that prison officials violated his Eighth
Amendment rights by failing to protect him when they transferred him to the

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new housing unit and were deliberately indifferent to his health and safety by
allowing him to remain on lockdown for several months. Lastly, Adeleke argues
that during the October 27th incident, Officer Flackenstein used excessive force
which caused him to feel pain in his shoulder. For Officer Flackenstein’s alleged
use of excessive force, Adeleke sought money damages.
      “The Constitution does not mandate comfortable prisons . . . but neither
does it permit inhumane ones, and it is now settled that the treatment a
prisoner receives in prison and the conditions under which he is confined are
subject to scrutiny under the Eighth Amendment.” Woods v. Edwards, 51 F.3d
577, 581 (5th Cir. 1995). A prisoner must satisfy a two-part test, consisting of
an objective and a subjective component, to state a claim that the conditions of
his confinement violated the Eighth Amendment. Davis v. Scott, 157 F.3d 1003,
1006 (5th Cir. 1998). First, a prisoner must demonstrate the objective component
of conditions “so serious as to deprive prisoners of the minimal measure of life’s
necessities, as when it denies the prisoner some basic human need.” Harper v.
Showers, 174 F.3d 716, 720 (5th Cir. 1999). “Second, under a subjective
standard, the prisoner must establish that the responsible prison officials acted
with deliberate indifference to his conditions of confinement.” Id. at 720. A
prison official acts with deliberate indifference “only if he knows that an inmate
faces a substantial risk of serious harm and [he] disregards that risk by failing
to take reasonable measures to abate it.” Farmer v. Brennan, 511 U.S. 825, 847,
114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994).
      “To prevail on a section 1983 failure to protect claim, a prisoner must
demonstrate that ‘he was incarcerated under conditions posing a substantial risk
of serious harm and that prison officials were deliberately indifferent to his need
for protection.”’ Jones v. Greninger, 188 F.3d 322, 326 (5th Cir. 1999) (quoting
Newton v. Black, 133 F.3d 301, 308 (5th Cir. 1998)). The deliberate indifference
standard in a failure to protect claim is subjective, not objective. It requires

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proof that the official actually knew of a substantial risk of serious harm and
failed to act. Farmer, 511 U.S. at 832-34.
       To succeed on an excessive force claim, a plaintiff bears the burden of
showing (1) an injury; (2) which resulted directly and only from the use of force
that was excessive to the need; and (3) the force used was objectively
unreasonable. Glen v. City of Tyler, 242 F.3d 307, 313 (5th Cir. 2001). Under 42
U.S.C. § 1997(e)(e), “no Federal civil action may be brought by a prisoner
confined in a jail, prison or other correctional facility, for mental or emotional
injury suffered while in custody without a prior showing of physical injury.”
Alexander v. Tippah County, 351 F.3d 626, 631 (5th Cir. 2003). The absence of
serious injury, while relevant to the inquiry, does not preclude relief. Siglar v.
Hightower, 112 F.3d 191, 193 (5th Cir. 1997). The physical injury required by
§ 1997(e)(e) must be more than de minimis, but need not be significant. Harper,
174 F.3d at 719.
       Adeleke’s Eighth Amendment claims center around his transfer to an
allegedly more dangerous housing unit and the lockdown that followed that
transfer. He fails to demonstrate any denial of his basic human needs or obvious
and substantial risk of serious harm to his health and safety. Additionally, his
allegations do not demonstrate that any prison official was aware of any such
risk posed by his transfer. The housing unit that Adeleke was transferred to
was generally assigned to inmates who had received disciplinary cases, as he
had, or who had a gang background. While Adeleke’s transfer and being on
lockdown may have caused discomfort and inconvenience (including having to
eat sack lunches and being denied visitation with his cousins), his allegations do
not constitute “extreme deprivations” or “deliberate indifference” by prison
officials.   See e.g., McCray v. Sullivan, 509 F.2d 1332, 1334 (5th Cir. 1975)
(“[V]isitation privileges are a matter subject to the discretion of prison officials
and are not a constitutional right.”); Talib v. Gilley, 138 F.3d 211, 214 n. 3 (5th

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Cir. 1998) (“The deprivation of food constitutes cruel and unusual punishment
only if it denies a prisoner the minimal civilized measure of life’s necessities.”).
      During the October 27th incident, Adeleke alleged that he was standing
by the sink in the day room when Officer Fleckenstein came from behind him
and told him to get away from the sink. He alleges that Officer Fleckenstein
asked for his identification card and before he could turn around, he grabbed
him by the shoulder and spun him around. Adeleke fails to show that his injury
resulted from a use of force which was excessive to the need and which was
objectively unreasonable. The force used was not objectively unreasonable, nor
was it excessive in that Officer Fleckenstein turned Adeleke around and
repeated his order while Adeleke faced him, rather than the sink. Moreover,
Adeleke’s allegations demonstrate that the physical injury he received from
Officer Fleckenstein, a sore shoulder which he treated with Tylenol and for
which he neither sought nor required medical attention, was no more than de
minimis and insufficient to support a claim of cruel and unusual punishment.
      For the reasons stated above, Adeleke’s claims are without arguable merit
and the district court was correct in dismissing them as frivolous.
      C.    Due Process Claims
      Adeleke next argues that the district court erred in dismissing his due
process claims as frivolous. Adeleke claims he was denied due process by being
transferred from one housing unit to an allegedly more dangerous housing unit
and being subjected to lockdown, lasting several months, after the transfer. He
alleges that prison officials violated his due process rights by failing to conduct
an investigation into who was involved in the fight which led to the lockdown.
      Adeleke’s allegations fail to state a claim for deprivation of due process of
law arising out of his change in housing or arising out of the lockdown after the
transfer of housing units. Adeleke’s due process challenge to his transfer from
one unit to another are without merit; prison officials exercise sole discretion


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over inmate unit placement, and inmates do not have a constitutionally
protected property or liberty interest in housing in certain facilities. See Moody
v. Baker, 857 F.2d 256, 257-58 (5th Cir. 1988). Thus, the determination to move
Adeleke to another part of the prison as a result of the disciplinary case does not
implicate a protected property or liberty interest and as result the protections
of the Due Process Clause does not attach to these proceedings.           Adekele
testified that he complained to prison officials about being in lockdown but his
complaints were not satisfactorily addressed. Prisoners do not have a federally
protected liberty interest in having their complaints resolved to their
satisfaction. Geiger v. Jokers, 404 F.3d 371, 373-74 (5th Cir. 2005). Therefore,
Adeleke has failed to state a claim for deprivation of due process against prison
officials for failure to properly investigate.
      Adeleke also alleges that he was deprived of due process in the disciplinary
case that resulted in his transfer in housing units. He alleges that prison
officials erred in grading them as major disciplinary cases without first
interviewing him. Inmates who are charged with institutional rules violations
are entitled to rights under the Due Process Clause only when the disciplinary
action may result in a sanction that will infringe upon constitutionally protected
liberty interest. See Sandin v. Conner, 515 U.S. 427 (1995).
      The sanction that resulted from Adeleke being given a major disciplinary
case was the transfer in housing units. As noted above, prisoners have no
constitutionally protected property or liberty interest in residing in a particular
housing unit. Because the sanction that Adeleke was subjected to did not result
in a sanction that infringed upon any constitutionally protected liberty interest,
the Due Process Clause was not implicated by prison officials designating his
violations as major without first interviewing him.
      For the reasons stated above, Adeleke’s Due Process claims are without
arguable merit and the district court was correct in dismissing them as frivolous.


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                              III. CONCLUSION
      Adeleke’s appeal is without arguable merit and is DISMISSED as
frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5th Cir. R.
42.2. The district court’s dismissal and the dismissal of this appeal count as two
strikes for purposes of 28 U.S.C. § 1915(g). Adepegba v. Hammons, 103 F.3d
383, 387 (5th Cir. 1996). Adeleke is WARNED that if he accumulates three
strikes, he will no longer be allowed to proceed in forma pauperis in any civil
action or appeal filed while he is detained or incarcerated in any facility unless
he is in imminent danger of serious physical injury. See 28 U.S.C. § 1915(g).
      Further, Adeleke has not established that his appeal presents the sort of
exceptional circumstances warranting the appointment of counsel. See Cooper
v. Sheriff, Lubbock County, Tex., 929 F.2d 1078, 1084 (5th Cir. 1991).
Accordingly, his motion for appointment of appellate counsel is DENIED.




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