     Case: 08-50821     Document: 00511230564          Page: 1    Date Filed: 09/10/2010




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

                                                 FILED
                                                                        September 10, 2010
                                     No. 08-50821
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

JAMES RUSSELL SMITH,

                                                   Plaintiff-Appellant

v.

MARISSA JARAMILLO, CORRECTIONS OFFICER III,

                                                   Defendant-Appellee


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 5:05-CV-713


Before GARWOOD, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
        James Russell Smith, Texas prisoner # 620944, appeals the district court’s
judgment dismissing his 42 U.S.C. § 1983 suit. Smith brought suit against
several named and unnamed prison officials, alleging that the officials violated
his equal protection rights by denying him admission into the Gang
Renunciation and Disassociation (GRAD) Program based on his race; that they
failed to protect him from attacks by various gang members, in violation of the
Eighth Amendment; and that they failed to follow rules and policies of the Texas

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-50821       Document: 00511230564 Page: 2             Date Filed: 09/10/2010
                                    No. 08-50821

Department of Criminal Justice (TDCJ) with respect to protecting him from
assault. With the exception of the claims against Marissa Jaramillo, the district
court dismissed certain claims as frivolous or for failure to state a claim
pursuant to 28 U.S.C. § 1915, and the remaining claims on summary judgment.
The case proceeded to trial against Jaramillo, with a verdict in her favor. Smith
challenges the pretrial dismissals as well as various procedural rulings and an
evidentiary ruling at trial. Finding no error, we affirm.1
       A dismissal under§ 1915(e) for failure to state a claim upon which relief
may be granted is reviewed under the same de novo standard as a dismissal
under F ED. R. C IV. P. 12(b)(6). Black v. Warren, 134 F.3d 732, 733-34 (5th Cir.
1998). The dismissal of a complaint as frivolous typically is reviewed for abuse
of discretion; however, where the district court also finds that the complaint fails
to state a claim it is reviewed de novo. See Geiger v. Jowers, 404 F.3d 371, 373
(5th Cir. 2005). We review a grant of summary judgment de novo. Cousin v.
Small, 325 F.3d 627, 637 (5th Cir. 2003).
       Smith first argues that the district court erred by dismissing his equal
protection claims regarding the GRAD Program and failed to enter an order of
dismissal. We find no error. The court dismissed all claims based on equal
protection and following the trial entered a judgment dismissing the case.
Further, the record supports the dismissal.               Smith failed to identify any
individuals responsible for denying him admission into the GRAD Program. See



       1
          The record presents a potential jurisdictional issue which we must address first sua
sponte. Donaldson v. Ducote, 373 F.3d 622, 624 (5th Cir. 2004). In the court below, a
Magistrate Judge presided over the jury trial and entered judgment. See 28 U.S.C. § 636(c)
(“Upon the consent of the parties, a full-time United States magistrate . . . may conduct any
or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the
case. . . .”). However, Smith executed an ambiguous consent form. Nevertheless, neither
Smith nor his appointed attorney objected to further appearances before the magistrate judge,
including a two-day jury trial. Therefore, we hold that Smith impliedly consented because
both Smith and his counsel were aware of the need for consent and the right to refuse it, had
ample opportunity to object, and still voluntarily appeared to try the case before the
Magistrate Judge. See Roell v. Withrow, 123 S. Ct. 1696, 1703 (2003).

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                                No. 08-50821

Murphy v. Kellar, 950 F.2d 290, 292 (5th Cir. 1992). Rather, he named only
John Does. Even if Smith had been able to identify the John Does through
discovery, as he contends, Smith’s allegations and the record evidence fail to
show an equal protection violation by any defendant, named or unnamed. See
Adkins v. Kaspar, 393 F.3d 559, 566 (5th Cir. 2004).
      With respect to Smith’s failure to protect claims, Smith was required to
show that he was “incarcerated under conditions posing a substantial risk of
serious harm and that prison officials were deliberately indifferent to his need
for protection.” Neals v. Norwood, 59 F.3d 530, 533 (5th Cir. 1995). 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.” Farmer v. Brennan, 511 U.S. 825, 847 (1994).
Actual knowledge and appreciation of the risk are required. Id. at 837-38. We
have reviewed the record and arguments and we agree with the district court
that the defendants were entitled to dismissal of these claims.
      Smith next argues that the district court erred by entering a protective
order staying discovery.    We review for abuse of discretion.      See Krim v.
BancTexas Group, Inc., 989 F.2d 1435, 1442 (5th Cir. 1993). As a threshold
matter, we reject the defendants’ contention that we lack jurisdiction to review
the discovery ruling.    It is true that discovery orders are ordinarily not
immediately appealable because they do not constitute final judgments.
Goodman v. Harris Cnty., 443 F.3d 464, 467 (5th Cir. 2006).            However,
interlocutory rulings may be reviewable once a final judgment has been
rendered. See Trust Co. of La. v. N.N.P., Inc., 104 F.3d 1478, 1485 (5th Cir.
1997); Pacitti v. Macy’s, 193 F.3d 766, 777 (3d Cir. 1999).
      Nevertheless, we discern no reversible error. The defendants provided
significant amounts of documents and information to Smith voluntarily; Smith
made no further efforts to pursue discovery; and Smith offers only conclusory
assertions regarding how the discovery was necessary to his case. There was no

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                                   No. 08-50821

abuse of discretion. See Krim, 989 F.2d at 1444; Paul Kadair, Inc. v. Sony Corp.
of America, 694 F.2d 1017, 1031-32 (5th Cir. 1983).
      Next, Smith contends that the court erred by excluding a certain document
he wished to use to impeach Jaramillo. A district court’s decision to exclude
evidence is reviewed for an abuse of discretion; however, even if an abuse of
discretion is found, this court looks to whether the error affected a substantial
right, i.e., was harmless. See Munn v. Algee, 924 F.2d 568, 571, 573 (5th Cir.
1991).
      Contrary to Smith’s assertion, the record shows that the district court
admitted the first four pages of the contested document, which contained
purportedly damaging information about Jaramillo regarding an investigation.
Jaramillo testified about that information both on direct and cross-examination.
To the extent that Smith contends that the court erroneously excluded evidence
of an overheard telephone conversation, our review of that evidence and the
record persuades us that any error was harmless in light of the other evidence
regarding Jaramillo’s credibility and the unrebutted testimony of an investigator
from the Office of the Inspector General finding no evidence to support Smith’s
claims against Jaramillo.
      Finally, Smith does not challenge the district court’s dismissal of his
claims based on failure to follow TDCJ policies. He has thus abandoned that
claim. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). In any case,
the district court’s ruling was correct. See Edwards v. Johnson, 209 F.3d 772,
779 (5th Cir. 2000).
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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