     Case: 10-10280 Document: 00511332890 Page: 1 Date Filed: 12/27/2010




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

                                                 FILED
                                                                         December 27, 2010
                                     No. 10-10280
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

DAVID FLORES, JR.,

                                                   Plaintiff-Appellant

v.

BRAD LIVINGSTON, Director Texas Department of Criminal Justice-ID;
DAVID E. FONDREN, Smith Unit Assistant Warden; FRED C. EARLY, Smith
Unit Assistant Warden; ARLENE A. FRANCO, Smith Unit Major Supervisor;
ROBERTO R. GUTIERREZ, Smith Unit Captain Supervisor; DAVID
ARELLANO, Sergeant Supervisor Smith Unit; SYLVIA C. SAUSEDA, Sergeant
Supervisor Smith Unit; JEFFREY NARBAEZ, Sergeant Supervisor Montford
Unit; OLIVER VASQUEZ, Correctional Officer Smith Unit; SHANE
MARTINEZ, Smith Unit Facility Health Administrator,

                                                   Defendants-Appellees




                   Appeals from the United States District Court
                        for the Northern District of Texas
                              USDC No. 5:09-CV-171


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




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-10280 Document: 00511332890 Page: 2 Date Filed: 12/27/2010

                                       No. 10-10280

      David Flores, Jr., Texas prisoner # 1350652, appeals from the magistrate
judge’s judgment, partially dismissing his civil rights complaint as frivolous and
for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A(b) and 42
U.S.C. § 1997e(c). Our review is de novo. See Geiger v. Jowers, 404 F.3d 371,
373 (2005).
      Flores raises a number of claims in his appellate brief that were not
addressed at the Spears1 hearing, including: (1) conspiracy and “cover-up” to
violate his civil rights, (2) denial of access to courts, (3) denial of freedom of
speech, (4) denial of Freedom of Information/Privacy Act, and (5) punitive use of
mechanical restraints or handcuffs for non-punitive past conduct. Because
Flores did not raise these allegations at the Spears hearing, they were not
properly before the magistrate judge and will not be addressed on appeal. See
Riley v. Collins, 828 F.2d 306, 307 (5th Cir. 1987) (allegations at Spears hearing
supersede allegations of complaint).
      Flores challenges the MJ’s dismissal of his claims of deliberate indifference
to serious medical needs.           The Supreme Court has adopted “subjective
recklessness as used in the criminal law” as the appropriate test for deliberate
indifference. See Farmer v. Brennan, 511 U.S. 825, 839-41 (1994). A prison
official acts with deliberate indifference “only if he knows that inmates face a
substantial risk of serious harm and disregards that risk by failing to take
reasonable measures to abate it.” Id. at 847. A delay in treatment does not
violate the Eighth Amendment unless there has been deliberate indifference
that results in substantial harm. See Mendoza v. Lynaugh, 989 F.2d 191, 195
(5th Cir. 1993).      Flores has not shown that the magistrate judge erred in
dismissing his deliberate indifference claims against Vasquez, Narbaez,
Sauseda, Arellano, and Fortner because Flores’s allegations do not reflect that




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

                                              2
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                                  No. 10-10280

any delay in his receipt of medical treatment for his wrists, shoulder, or tooth
resulted in substantial harm. See id.
      Although the magistrate judge allowed Flores’s retaliation claim against
Fortner to proceed, Flores’s brief nonetheless addresses the issue of retaliation,
arguing that the magistrate judge should have addressed his retaliation claim
with respect to all of the named defendants and in light of the totality of the
circumstances and the evidence supporting his “allegations of complicity and
cover-up.”   Because Flores did not allege a retaliation claim at the Spears
hearing against any defendant besides Fortner, the magistrate judge did not err
in declining to address a claim of retaliation against any other defendant. See
Riley, 828 F.2d at 307.
      Flores argues that his rights to due process and equal protection were
violated when officers failed to adequately investigate the incident at the time
that it happened and during the grievance process.               Flores had no
constitutionally protected interest in having his grievances resolved to his
satisfaction. See Geiger, 404 F.3d at 373-74. Even if Flores had a constitutional
right to an impartial investigator during the grievance process, Flores’s claims
of impartiality are conclusional. See Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007)
      “[A] violation of equal protection occurs only when the government treats
someone differently than others similarly situated . . . .” Brennan v. Stewart,
834 F.2d 1248, 1257 (5th Cir. 1988). Flores did not allege that he was treated
differently from similarly situated prisoners with respect to the investigation of
the incident or of the grievances or that the defendants engaged in purposeful
discrimination; thus, his complaint failed to state an equal protection claim, and
the magistrate judge did not err in dismissing this claim.
      Flores challenges the magistrate judge’s dismissal of his failure-to-
train/supervise claims.      The plaintiff must demonstrate the personal
involvement of the defendant in the denial of constitutional rights or a causal

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                                  No. 10-10280

link between the defendant’s conduct and the deprivation. Roberts v. City of
Shreveport, 397 F.3d 287, 292 (5th Cir. 2005). For a supervisor to be liable
under § 1983, the plaintiff must show that (1) the supervisor failed to supervise
or train the subordinate official; (2) a causal link exists between the failure to
train or supervise and the constitutional violation; and (3) the failure to train or
supervise amounts to deliberate indifference to the plaintiff’s constitutional
rights. Id. Flores’s allegations do not reflect that a failure to train or supervise
amounted to deliberate indifference. See Roberts, 397 F.3d at 292.
      Flores argues that TDCJ-CID has improperly classified him as a member
of a Security Threat Group in violation of his constitutional rights. A prisoner
has no liberty interest in his custodial classification.        See Hernandez v.
Velasquez, 522 F.3d 556, 562-64 (5th Cir. 2008). Flores’s allegations concerning
his detention in administrative segregation do not come close to the allegations
in Wilkinson v. Austin, 545 U.S. 209, 223-24 (2005), in which the Supreme Court
held that the conditions in Ohio’s “Supermax” facility were so restrictive that a
liberty interest was implicated. The magistrate judge did not err in dismissing
Flores’s due process challenge to his custodial classification.
      The magistrate judge did not abuse her discretion in denying Flores’s
motions for the appointment of counsel. See Cupit v. Jones, 835 F.2d 82, 86 (5th
Cir. 1987).
      The judgment of the magistrate judge is AFFIRMED. We DENY Flores’s
requests (1) for an evidentiary hearing by this court, (2) for an order for a
Martinez Report, (3) for appointment of counsel, (4) for an order that TDCJ-CID
correct records to reflect that Flores is not a member of a STG, and (5) for a
declaration   by    this court that the Prison       Litigation   Reform    Act is
unconstitutional.




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