     Case: 10-40628 Document: 00511497211 Page: 1 Date Filed: 06/03/2011




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

                                                 FILED
                                                                             June 3, 2011
                                     No. 10-40628
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

JAVIER YBARRA,

                                                   Plaintiff-Appellant

v.

SHIRLEY MEADOR, Food Service Manager IV; AMY MARSHALL, Food Service
Manager III; FRANK HELMS, Major,

                                                   Defendants-Appellees


                    Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 9:09-CV-213


Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
       Javier Ybarra, Texas prisoner # 775707, appeals from the district court’s
dismissal of his civil rights complaint as frivolous and for failure to state a claim.
See 28 U.S.C. § 1915A. Ybarra contends that (1) the district court erred in
dismissing his claim that the defendants violated the Eighth Amendment by
serving him meals containing peanut butter and tuna, to which he was allergic,
and specifically by serving meals consisting largely or entirely of peanut butter


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-40628

sandwiches for extended periods during prison lockdowns; (2) the district court
abused its discretion in denying his motion for a temporary restraining order
(TRO) and preliminary injunction; (3) the district court erred in dismissing his
retaliation claims; (4) the district court erred in denying him a jury trial; (5) the
magistrate judge abused her discretion in denying him leave to amend his
complaint, in denying his motion for the appointment of counsel, and in not
allowing him to present the testimony of various witnesses at the Spears 1
hearing; and (6) the district court erred in transferring his case from the Lufkin
Division to the Tyler Division, Eastern District of Texas.
      A court should dismiss a complaint filed by a prisoner if the complaint is
frivolous or fails to state a claim upon which relief may be granted.            See
§ 1915A(b)(1). We review the dismissal of a complaint under § 1915A de novo.
Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005). A complaint is frivolous if
it has no arguable basis in law or fact. Id. When reviewing a dismissal for
failure to state a claim, all well-pleaded facts are accepted as true and are
viewed in the light most favorable to the plaintiff. In re Katrina Canal Breaches
Litigation, 495 F.3d 191, 205 (5th Cir. 2007).
      “Prison officials have a constitutional obligation to provide reasonably
adequate food” to inmates. Eason v. Thaler, 14 F.3d 8, 10 (5th Cir. 1994)
(footnotes omitted). “The deprivation of food constitutes cruel and unusual
punishment only if it denies a prisoner the minimal civilized measure of life’s
necessities.” Talib v. Gilley, 138 F.3d 211, 214 n.3 (5th Cir. 1998) (internal
quotation marks and citation omitted). “Whether the deprivation of food falls
below this threshhold depends on the amount and duration of the deprivation.”
Id.; see also Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999). To obtain relief
on this claim, Ybarra must show that prison officials acted with deliberate
indifference, such that the officials were aware of facts from which an inference


      1
          Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).

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of the substantial risk of serious harm could be drawn and that the officials
actually drew the inference. See Farmer v. Brennan, 511 U.S. 825, 834, 837
(1994).
      Ybarra testified at the Spears hearing, inter alia, that he was allergic to
peanut butter; had suffered allergic reactions requiring medical attention after
being served meals containing peanut butter; and that during prison lockdowns,
he was served meals consisting solely or largely of peanut butter sandwiches or
of food that had been contaminated with peanut butter oil. The district court did
not address Ybarra’s allegations that during prison lockdowns, he was served
meals consisting solely or largely of peanut butter sandwiches. Although, as the
district court determined, isolated instances of meal deprivation are not
constitutionally cognizable, Ybarra’s allegations concerning the meals he was
served during lockdown were sufficient to state a claim. See Cooper v. Sheriff,
Lubbock County, Texas, 929 F.2d 1078, 1081, 1083 (5th Cir. 1991); Berry, 192
F.3d at 507; Eason, 14 F.3d at 10. Therefore, we vacate the dismissal of Ybarra’s
Eighth Amendment claim and remand the issue for further proceedings.
      We lack jurisdiction to review the district court’s denial of a TRO. In re
Lieb, 915 F.2d 180, 183 (5th Cir. 1990). Nevertheless, because the district
court’s denial of a preliminary injunction may have rested on its erroneous
conclusion that Ybarra failed to state an Eighth Amendment claim, the district
court’s implicit denial of Ybarra’s motion for a preliminary injunction is vacated
for the district court, on remand, to reexamine Ybarra’s motion for preliminary
injunctive relief.
      Prison officials may not retaliate against an inmate for exercising the right
of access to the courts or for using a prison’s grievance system. See Woods v.
Smith, 60 F.3d 1161, 1164 (5th Cir. 1995). To establish a claim of retaliation, a
prisoner must show “(1) a specific constitutional right, (2) the defendant’s intent
to retaliate against the prisoner for his or her exercise of that right, (3) a
retaliatory adverse act, and (4) causation.” McDonald v. Steward, 132 F.3d 225,

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231 (5th Cir. 1998). Ybarra has not established that any of the numerous
adverse events he alleges were directly motivated by retaliation, and he fails to
produce a chronology of events from which retaliation could be plausibly
inferred. See Woods, 60 F.3d 1166. His personal belief that he was the victim
of retaliation is not sufficient to support a retaliation claim. See Johnson v.
Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997). The district court did not err in
dismissing Ybarra’s retaliation claims as frivolous and for failure to state a
claim.
         Ybarra has not demonstrated that he was entitled to a jury trial. See
Spears, 766 F.2d at 181-82. The evidentiary hearing was in the nature of a
motion for a more definite statement, not a bench trial, and did not exceed the
proper scope of a Spears hearing. See Wilson v. Barrientos, 926 F.2d 480, 482
(5th Cir. 1991). Based on its determinations, the district court complied with the
directives of § 1915A in dismissing Ybarra’s complaint prior to conducting a
trial.
         We reject Ybarra’s assertion that the magistrate judge abused her
discretion in denying his motions to amend his complaint. In general, it is not
proper for a district court to dismiss a pro se complaint without affording the
plaintiff the opportunity to amend. Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th
Cir. 1998). However, any such error may be ameliorated if the plaintiff has
pleaded his “best case.” Id. at 1054 & n.7. Here, the magistrate judge conducted
a Spears hearing after Ybarra filed his motions to amend his complaint. Ybarra
was given the opportunity to articulate fully the factual basis of his claims, with
the possible exception of the claim that he was deprived of foods not containing
peanut butter during prison lockdowns. However, Ybarra did not assert this
claim in his motions to amend his complaint but apparently asserted it for the
first time at the Spears hearing. Ybarra has not identified any claims that he
was unable to raise and has not shown error regarding his request to amend the
complaint prior to the Spears hearing. See Bazrowx, 136 F.3d at 1054 & n.7.

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      Ybarra has failed to demonstrate the extraordinary circumstances
necessary to justify the appointment of counsel. See Ulmer v. Chancellor, 691
F.2d 209, 212-13 (5th Cir. 1982). Thus, he has shown no abuse of discretion in
the denial of his motion for the appointment of counsel. See Cupit v. Jones, 835
F.2d 82, 86 (5th Cir. 1987).
      Ybarra has not shown that the magistrate judge abused her discretion in
not requiring additional witnesses, including the defendants, to testify at the
Spears hearing. See Wilson, 926 F.2d at 483. Ybarra has not demonstrated that
any relevant testimony was excluded or made a substantial showing that the
testimony of the defendants was needed. See Cupit, 835 F.2d at 86-87.
      The record does not reflect that the cause of action was transferred from
the Lufkin Division to the Tyler Division, as Ybarra asserts. Rather, the district
court properly referred the case to the magistrate judge pursuant to 28 U.S.C.
§ 636(b). See Carbe v. Lappin, 492 F.3d 325, 327 (5th Cir. 2007). Moreover, the
magistrate judge did not enter judgment pursuant to § 636(c), which requires
consent of the parties, but only made a recommendation pursuant to
§ 636(b)(1)(B).
      Ybarra has failed to raise any arguments challenging the district court’s
specific reasons for dismissing his claims against Major Frank Helms. Because
Ybarra fails to challenge the district court’s reasons for dismissing his claims
against Helms, the issues are deemed abandoned. See Brinkmann v. Dallas
County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
      For the foregoing reasons, we AFFIRM the district court’s dismissal of
Ybarra’s retaliation claims as frivolous and for failure to state a claim. We
VACATE and REMAND the dismissal of Ybarra’s Eighth Amendment claim and
his motion for preliminary injunctive relief with respect to his Eighth
Amendment claim for further proceedings consistent with this opinion. We
express no view as to the ultimate resolution of these issues. Ybarra’s motion
for the appointment of counsel on appeal is DENIED.

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