     Case: 12-30308       Document: 00512134980         Page: 1     Date Filed: 02/05/2013




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

                                                                            FILED
                                                                         February 5, 2013
                                     No. 12-30308
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

CALVIN JAMES,

                                                  Plaintiff-Appellant

v.

CURTIS MASON; UNITED STATES OF AMERICA,

                                                  Defendants-Appellees


                   Appeals from the United States District Court
                       for the Western District of Louisiana
                              USDC No. 1:10-CV-1706


Before JONES, DENNIS and HAYNES, Circuit Judges.
PER CURIAM:*
       Calvin James, federal prisoner # 08476-041, filed a pro se civil rights
complaint under Bivens v. Six Unknown Named Agents of the Federal Bureau of
Narcotics, 403 U.S. 388 (1971), and the Federal Tort Claims Act (FTCA),
28 U.S.C. §§ 1346 and 2671, against the United States of America, the Bureau
of Prisons (BOP), and Correctional Officer Curtis Mason, in his individual and
official capacity. James alleged that Mason used excessive force by intentionally
closing a sliding steel gate on him and that he consequently suffered back and

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-30308

chest pain. He also contended that the United States, through the BOP, failed
to monitor officers to insure that they did not close the gates on inmates.
      Upon the defendants’ motion, the district court’s dismissed James’s FTCA
claims against the United States for lack of jurisdiction pursuant to Federal Rule
of Civil Procedure 12(b)(1), and dismissed his Bivens claim against Mason in his
individual capacity on summary judgment pursuant to Federal Rule of Civil
Procedure 56. He now appeals that dismissal.
      James argues that the district court wrongly found that it lacked subject
matter jurisdiction over James’s FTCA claim, which the district court construed
to allege an assault, because the United States had sovereign immunity under
the intentional-tort exception set forth in 28 U.S.C. § 2680(h). He argues that
he also alleged that the United States, through BOP officials, failed to maintain
a secure premises by not insuring through proper supervision or policies that
officers properly operated the gates. James alleges that this claim does not arise
out of an intentional tort and should not have been dismissed for lack of subject
matter jurisdiction. We review the district court’s dismissal for lack of subject
matter jurisdiction under Rule 12(b)(1) de novo. Saraw P’ship v. United States,
67 F.3d 567, 569 (5th Cir. 1995).
      The United States has partially waived its sovereign immunity under the
FTCA. § 1346(b). This waiver of immunity pursuant to the FTCA is limited by
exceptions, including, inter alia, the intentional-tort exception, which provides
that the FTCA does not apply to a claim arising out of an intentional tort listed
in § 2680(h) (e.g., assault). See § 2680(h). However, a negligence claim that
concerns a government employee’s commission of an intentional tort enumerated
in § 2680(h) may proceed where the negligence “arises out of an independent,
antecedent duty” under applicable state law and is “unrelated to the employment
relationship between the tortfeasor and the United States.” Leleux v. United
States, 178 F.3d 750, 757 (5th Cir. 1999).



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      Although James argues that he alleged a premises-liability claim under
Texas state law, and thus posited that the United States had an independent,
antecedent duty, his claim is unavailing. The record supports that James sought
to use a premises-liability claim to recharacterize an assault claim that was
premised on negligent supervision. A plaintiff may not avoid the intentional-tort
exception by alleging a claim in terms of negligent failure to prevent one of the
torts enumerated in § 2680(h). Id. at 756-59. Because James’s claim that BOP
officials negligently supervised officers’ operation of the gates is not independent
of the employment relationship between the officers and the United States, and
otherwise arose out of one of the torts listed in § 2680(h), he has not shown that
his claim is not barred by the intentional-tort exception. See id. at 756-59. He
therefore has not shown that the district court erred by dismissing his FTCA
claim for lack of subject matter jurisdiction.
      James also argues that the district court erred in granting the defendants’
motion for summary judgment because the record supports that he was injured
as a result of the incident and that Mason intentionally and unnecessarily closed
the gate on him. Summary judgment is proper “if the movant shows that there
is no genuine dispute as to any material fact and that the movant is entitled to
judgment as a matter of law.” FED. R. CIV. P. 56(a). We construe “all facts and
inferences in the light most favorable to the nonmoving party.” Dillon v. Rogers,
596 F.3d 260, 266 (5th Cir. 2010) (internal citation and quotation marks
omitted). We review a grant of summary judgment de novo. Carnaby v. City of
Houston, 636 F.3d 183, 187 (5th Cir. 2011).
      James principally asserts that the district court improperly dismissed his
excessive-force claim on the basis that he did not establish that he experienced
a sufficiently serious injury. However, the record does not demonstrate that the
district court viewed the severity of James’s injury to be dispositive of whether
Mason used excessive force. Although the district court noted that the evidence
showed that the incident was minor and, at most, caused de minimis injuries,

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the record does not indicate that the severity of James’s injury was the sole
determinant of the district court’s decision; the district court also noted that the
incident was accidental, the gate closing was proper under the circumstances,
and there was no use of excessive force. Therefore, there is no evidence that the
district court dismissed James’s claim solely because he did not show that he
sustained a severe injury. See Wilkins v. Gaddy, 130 S. Ct. 1175, 1179-80 (2010).
      He otherwise has not shown that the district court erred in finding that
there was no genuine dispute as to any material fact that would preclude a
summary judgment in favor of Mason. See FED. R. CIV. P. 56(a). Construing
James’s allegations as true under the summary judgment standard, the evidence
supports that Mason believed, however incorrectly, that he had a valid security
reason to close the gate and closed the gate purposefully in furtherance of that
perceived reason; that the gate closure was directly related to the perceived
security justification and involved the application of force that was proportionate
to that reason; that, to the extent that James was harmed due to the incident,
his injuries were negligible; and that the gate, which stopped upon contacting
James, was swiftly opened and that James was caught between the gate and a
pole for no more than five seconds. Thus, even if Mason unnecessarily applied
force by intentionally closing the gate, James has not shown, especially given the
minor nature of the force applied, and the absence of any indicia of malice or
discernable injury, that Mason used force with the intent to cause harm rather
than in a good-faith effort to maintain order. See Hudson v. McMillian, 503 U.S.
1, 7 (1992); Baldwin v. Stalder, 137 F.3d 836, 839 (5th Cir. 1998).
      James complains that the district court wrongly denied his motion for the
appointment of counsel. However, because James has not established that there
were exceptional circumstances that warranted the appointment of counsel, he
has not demonstrated that the denial of his motion was an abuse of discretion.
See Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982); Robbins v. Maggio,
750 F.2d 405, 413 (5th Cir. 1985).

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      He also contends that the district court erred in adopting the magistrate
judge’s report because the magistrate judge did not liberally construe James’s
pleadings, wrongly denied his request for an extension of time to respond to the
defendants’ motion to dismiss and for summary judgment, failed to review all of
the relevant evidence, and improperly characterized James’s allegations and the
nature of his injuries. However, James has not shown that he is entitled to relief
on the basis of these claims because he has not established that the magistrate
judge erred in the manner alleged or that any of the purported errors affected
the disposition of his claims. See FED. R. CIV. P. 61 (harmless error rule).
      James also has not shown that he is entitled to relief on his claims that the
district court abused its discretion by denying his motion for a default judgment
on the grounds that Mason did not properly retain counsel pursuant to 28 C.F.R.
§ 50.15, or timely file responsive pleadings. See Lewis v. Lynn, 236 F.3d 766, 767
(5th Cir. 2001). James has not demonstrated that the Department of Justice’s
discretionary decision to provide Mason with representation is subject to judicial
review or that any improper representation should nullify his arguments, see 28
C.F.R. § 50.15(a), and the record does not otherwise show that this case involved
extreme delays or contumacious conduct. See Lewis, 236 F.3d at 767.
      James’s remaining claims that the district court wrongly denied his motion
for an injunction and a temporary restraining order and erroneously permitted
the introduction of a videotape of the incident also are unavailing. The denial
of a temporary restraining order is not appealable, In re Lieb, 915 F.2d 180, 183
(5th Cir. 1990), and James’s request for an injunction has been rendered moot
by his transfer to a different prison. See Herman v. Holiday, 238 F.3d 660, 665
(5th Cir. 2001). James has not set forth any bases on which the content of the
videotape was materially unreliable, and in any event, the record suggests that
the videotape did not affect James’s substantial rights because it was incidental
to the district court’s disposition of James’s claims. See FED. R. CIV. P. 61
      AFFIRMED.

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