     Case: 10-20810 Document: 00511482983 Page: 1 Date Filed: 05/19/2011




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

                                                 FILED
                                                                            May 19, 2011
                                     No. 10-20810
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

ATAUYO UMONDAK,

                                                   Plaintiff - Appellant

v.

CODY GINSEL,

                                                   Defendant - Appellee


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:10-CV-3974


Before WIENER, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Proceeding pro se and in forma pauperis, Atauyo Umondak, Texas prisoner
# 1576409, appeals the dismissal of his 42 U.S.C. § 1983 complaint as frivolous
and for failure to state a claim on which relief may be granted, pursuant to 28
U.S.C. § 1915(e)(2)(B)(i), (ii). Umondak alleged in his complaint that, while
housed at the Byrd Unit as a transient prisoner, he was denied out-of-cell
recreation, contrary to Texas Department of Criminal Justice (TDCJ) policy. He



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    Case: 10-20810 Document: 00511482983 Page: 2 Date Filed: 05/19/2011

                                  No. 10-20810

claimed violations of: his Eighth Amendment right to be free from cruel and
unusual punishment; and his Fourteenth Amendment right to due process.
      The dismissal of Umondak’s claims, as both frivolous and for failure to
state a claim, is reviewed de novo. Samford v. Dretke, 562 F.3d 674, 678 (5th
Cir. 2009).   In reviewing whether the complaint fails to state a claim, the
dismissal pursuant to § 1915(e)(2)(B)(ii) is reviewed under the same standard for
reviewing a dismissal under Federal Rule of Civil Procedure 12(b)(6). Id. at 678.
“Factual allegations must be enough to raise a right to relief above the
speculative level . . . .” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citations omitted). “To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting
Twombly, 550 U.S. at 570). Alternatively, a dismissal of a complaint as frivolous
under § 1915(e)(2)(B)(i) will be upheld if it has no arguable basis in law or fact.
Samford, 562 F.3d at 678.
      Umondak contends the TDCJ’s out-of-cell recreation policy creates a
protected liberty interest in such exercise; he maintains the denial of such
exercise without notice and a hearing violated his due-process rights.
Umondak’s claim, which involves an alleged deprivation of out-of-cell recreation
for approximately 25 days, fails to state a due-process violation. See Madison v.
Parker, 104 F.3d 765, 767-68 (5th Cir. 1997) (changes in conditions or quality of
confinement do not implicate due-process concerns).
      For his Eighth Amendment claim, Umondak contends the denial of out-of-
cell exercise for 25 days while he was at the Byrd Unit violated his right to be
free from cruel and unusual punishment. As stated in an attachment to the
complaint, Byrd Unit policy is that transient-status prisoners are not permitted
out of their cells for recreation. “‘Prison administrators are to be accorded wide-
ranging deference in the adoption and execution of policies and practices that in
their judgment are needed to preserve internal order and discipline and to

                                         2
     Case: 10-20810 Document: 00511482983 Page: 3 Date Filed: 05/19/2011

                                   No. 10-20810

maintain institutional security.’” Block v. Rutherford, 468 U.S. 576, 585 (1984)
(quoting Bell v. Wolfish, 441 U.S. 520, 547 (1979)).
      Furthermore, to establish an Eighth Amendment violation for conditions
of confinement, a prisoner must show that the alleged violation was sufficiently
serious—it deprived him of the minimal level of life’s necessities—and that
prison officials acted with deliberate indifference to his health or safety. Farmer
v. Brennan, 511 U.S. 825, 834, 847 (1994). “To establish deliberate indifference
in the context of the Eighth Amendment, the prisoner must show that the
defendant[] (1) w[as] aware of facts from which an inference of an excessive risk
to the prisoner’s health or safety could be drawn and (2) that [he] actually drew
an inference that such potential for harm existed.” Bradley v. Puckett, 157 F.3d
1022, 1025 (5th Cir. 1998) (citing Farmer, 511 U.S. at 837). Umondak has not
alleged that defendant was aware of an “excessive risk” to Umondak’s health or
safety or knew a potential for harm existed and acted with deliberate
indifference to it. Accordingly, the allegations in Umondak’s complaint are
insufficient to state a claim that is plausible on its face. See Iqbal, 129 S. Ct. at
1949; Samford, 562 F.3d at 682.
      AFFIRMED.




                                         3
