     Case: 17-10191      Document: 00514426245         Page: 1    Date Filed: 04/12/2018




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


                                    No. 17-10191
                                                                                FILED
                                                                            April 12, 2018
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
JESUS VALLE,

                                                 Plaintiff-Appellant

v.

RUSTY ROGERS, Correctional Officer III; XAVIER CUTRIGHT,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 1:14-CV-100


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
       Jesus Valle, Texas prisoner # 01106935, filed a civil rights complaint
against Officer Rusty Rogers, Officer Tommy Ramos, Officer Thomas Myers,
Sergeant Denise Upfold, Major Anthony Adcox, Lieutenant John T. Johnson,
and inmate Xavier Cutright.           Valle was picking up food trays outside of
inmates’ cells when he was attacked by Cutright through a bean chute door.
Cutright was locked in his cell at the time of the attack. The magistrate judge


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-10191

(MJ), presiding by consent, dismissed the claims against Ramos, Myers,
Upfold, Adcox, and Johnson as frivolous. The district court granted summary
judgment in favor of Rogers and declined to exercise supplemental jurisdiction
over Valle’s state law claims against Cutright. Valle now appeals.
      A district court shall dismiss a case if it determines that the case is
frivolous or fails to state a claim upon which relief can be granted. 28 U.S.C.
§ 1915(e)(2). A complaint is frivolous and lacks an arguable basis in law if it is
based upon an indisputably meritless legal theory. Neitzke v. Williams, 490
U.S. 319, 327 (1989). We review a § 1915 dismissal as frivolous for an abuse
of discretion. Norton v. Dimazana, 122 F.3d 286, 291 (5th Cir. 1997).
      As to Myers, Ramos, and Upfold, Valle’s claims of deliberate indifference
do not have an arguable basis in law because Cutright’s prison classification
would not provide grounds for an officer to be deliberately indifferent to a
theoretical risk that Valle would be injured through a bean chute. See Adames
v. Perez, 331 F.3d 508, 512-16 (5th Cir. 2003). His claims that Upfold and
Johnson failed to properly train and supervise employees fail because he did
not allege more than a single constitutional violation arising from the alleged
lack of training or supervision. Thompson v. Upshur County, Tex., 245 F.3d
447, 459 (5th Cir. 2001). Therefore, the magistrate judge did not abuse his
discretion in dismissing these claims as frivolous. See Neitzke, 490 U.S. at 327.
Valle does not challenge the MJ’s dismissal of claims against Major Adcox as
frivolous. Therefore, any challenge to the MJ’s dismissal of claims against
Major Adcox is abandoned. See Brinkmann v. Dallas County Deputy Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987).
      We review de novo the district court’s summary judgment ruling. Hyatt
v. Thomas, 843 F.3d 172, 176 (5th Cir. 2016). Because Valle fails to raise any
argument regarding his claims against Rogers in his official capacity, these



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                                  No. 17-10191

claims are abandoned. See Brinkmann, 813 F.2d at 748. Valle’s arguments
that Rogers opened the bean chute and failed to follow policy by staying within
five feet of him are conclusory and do not show that Rogers had requisite
knowledge of a substantial risk to Valle’s safety. He does not show a violation
of his constitutional rights. See Pratt v. Harris County, Tex., 822 F.3d 174, 180
(5th Cir. 2016), cert. denied, 137 S. Ct. 1121 (2017). Moreover, he does not cite
to any precedent supporting his assertion that Rogers’s actions were
objectively unreasonable. See Cass v. City of Abilene, 814 F.3d 721, 728 (5th
Cir. 2016). Therefore, the district court did not err in granting summary
judgment in favor of Rogers. Because Valle’s federal claims were properly
dismissed, the district court did not abuse its discretion in declining to exercise
supplemental jurisdiction over state-law claims. See Heggemeier v. Caldwell
County, Tex., 826 F.3d 861, 872 (5th Cir. 2016); 28 U.S.C. § 1367(c)(3). To the
extent that Valle is raising new claims for the first time on appeal based on a
theory of state-created danger, those claims are not properly before this court.
See Hannah v. United States, 523 F.3d 597, 600 n.1 (5th Cir. 2008); Williams
v. Ballard, 466 F.3d 330, 335 (5th Cir. 2006) (“Because these claims were not
raised in the district court, we do not address them on appeal.”);
      The judgment is AFFIRMED.             Exceptional circumstances are not
present in the instant case that would support the appointment of counsel. See
Ulmer v. Chancellor, 691 F.2d 209, 212-13 (5th Cir. 1982). Valle’s motion for
appointment of counsel on appeal is DENIED. All other outstanding motions
are DENIED.




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