     Case: 13-60650      Document: 00512727719         Page: 1    Date Filed: 08/08/2014




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

                                    No. 13-60650
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                         August 8, 2014
                                                                           Lyle W. Cayce
                                                                                Clerk
WILLIE B. GAINES, JR.,

                                                 Plaintiff−Appellant,

versus

DORRIS MCDONALD; JAMES HOLMAN,

                                                 Defendants−Appellees.



                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:12-CV-404




Before DAVIS, SMITH, and WIENER, Circuit Judges.
PER CURIAM: *


       Willie Gaines, Jr., Mississippi prisoner # 28009, filed a 42 U.S.C. § 1983



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-60650

complaint alleging that Dorris McDonald and James Holman violated his con-
stitutional rights while he was confined at the Central Mississippi Correctional
Facility (“CMCF”). McDonald and Holman moved for summary judgment,
seeking the dismissal of Gaines’s claims against them. The parties consented
to proceed before a magistrate judge (”MJ”), who granted the motion.
      We review a summary judgment de novo, employing the same standard
as did the district court. Carnaby v. City of Hous., 636 F.3d 183, 187 (5th Cir.
2011). Summary judgment is appropriate “if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judg-
ment as a matter of law.” FED. R. CIV. P. 56(a). We view the evidence in the
light most favorable to the nonmoving party, but “conclusional allegations and
unsubstantiated assertions may not be relied on as evidence by the nonmoving
party.” Carnaby, 636 F.3d at 187.
      In his pro se brief, Gaines does not make any argument with respect to
(1) the MJ’s conclusion that McDonald and Holman were entitled to Eleventh
Amendment immunity in their official capacities, (2) the MJ’s rejection of any
claims against Holman in his supervisory capacity, or (3) the MJ’s rejection of
any state-law claims. By failing to make those arguments in his appellate
brief, Gaines has abandoned them. See Wooley v. City of Baton Rouge, 211 F.3d
913, 918 & n.4 (5th Cir. 2000).
      With respect to his individual-capacity claims, Gaines first argues that,
upon his arrival at the CMCF, McDonald violated his Eighth Amendment right
to be free from cruel and unusual punishment when she assigned him initially
to a fully occupied two-man cell and then to a floor space in the day room for
approximately four days in late January 2012. There is no authority holding
that a prisoner has a constitutional right to sleep in an elevated bed. See Mann
v. Smith, 796 F.2d 79, 85 (5th Cir. 1986) (pretrial detainee case). Gaines was



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                                  No. 13-60650

not denied the “minimal civilized measures of life’s necessities” when he was
made to sleep on a mat on the floor in a public area. See Coleman v. Sweetin,
745 F.3d 756, 764 (5th Cir. 2014) (internal quotation marks and citation omit-
ted). Although the conditions in which Gaines was housed may have been
harsh, they were not cruel and unusual by contemporary standards, and there
was thus no Eighth Amendment violation. See Rhodes v. Chapman, 452 U.S.
337, 347 (1981).
      Gaines maintains that he contracted a painful foot fungus while housed
on the floor of the CMCF and that prison officials violated his constitutional
rights by showing deliberate indifference to his serious medical needs with
respect to that condition. “Unsuccessful medical treatment, acts of negligence,
or medical malpractice do not constitute deliberate indifference, nor does a
prisoner’s disagreement with his medical treatment, absent exceptional cir-
cumstances.” Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006). The stan-
dard to succeed on a deliberate-indifference claim is “extremely high,” and
Gaines has not met it here. See Domino v. Tex. Dep’t of Criminal Justice, 239
F.3d 752, 756 (5th Cir. 2001).
      Gaines asserts that prison officials in general, and Holman in particular,
violated his due-process rights by taking longer to respond to his administra-
tive grievance than was allowed by the prison grievance policy and by finding
that his grievance concerning his assignment to floor-space housing lacked
merit. A prisoner has no “federally protected liberty interest in having” prison
grievances resolved to his satisfaction. Geiger v. Jowers, 404 F.3d 371, 374
(5th Cir. 2005). Additionally, the failure by prison officials to respond to
Gaines’s grievances according to the state’s “own procedural regulations, [by
itself,] does not establish a violation of due process.” Jackson v. Cain, 864 F.2d
1235, 1251 (5th Cir. 1989).



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                               No. 13-60650

     Viewing the evidence in the light most favorable to Gaines, see Carnaby,
636 F.3d at 187, McDonald and Holman were entitled to judgment as a matter
of law, see FED. R. CIV. P. 56(a).   Therefore, the summary judgment is
AFFIRMED.




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