     Case: 09-40159         Document: 00511229719         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. 09-40159
                                       Summary Calendar                        Lyle W. Cayce
                                                                                    Clerk

TERESA FLORES, as executrix of the Estate of Hector Flores, substituted in
place and stead of Hector Flores, deceased,

                                                      Plaintiff-Appellant

v.

JOHN FOX, Warden; GONZALEZ, Captain; G MALDONADO, JR., Regional
Director; TERRY STACHER, Unit Manager; SWAIN, Special Investigative
Supervisor; NYLON, Counselor; RUSSO, Special Investigative Supervisor; B
WRIGHT, Counselor; ARSINGER, Counselor; SUTTON, CMC,

                                                      Defendants-Appellees


                        Appeal from the United States District Court
                             for the Eastern District of Texas
                                  USDC No. 1:08-CV-285


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
         Hector Flores,1 federal prisoner # 45506-080, proceeding pro se and in
forma pauperis (IFP), filed this civil rights complaint against numerous federal



         *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
         1
             Teresa Flores, Hector Flores’s sister, was substituted as the appellant upon Hector’s
death.
   Case: 09-40159    Document: 00511229719 Page: 2         Date Filed: 09/10/2010
                                 No. 09-40159

prison officials employed at the federal prison in Beaumont, Texas, alleging that
the defendants have willfully and intentionally failed to maintain an accurate
prison file on him, resulting in adverse effects. The district court construed
Flores’s civil action as filed pursuant to the Privacy Act, 5 U.S.C. § 552a, and
dismissed his complaint for failure to state a claim upon which relief could be
granted under 28 U.S.C. § 1915(e)(2)(B)(ii). The district court determined that
under the Privacy Act, a prisoner was not entitled to injunctive relief to correct
allegedly inaccurate records and that a civil action under the Privacy Act could
be brought against an agency, but that individuals were not liable for damages.
      Flores argues that the district court erred in dismissing his complaint for
failure to state a claim.    For the first time on appeal, Flores alleges facts
underlying an Eighth Amendment claim for failure to protect and deliberate
indifference, which is the subject of separate litigation in Flores v. Lappin,
No. 1:08-cv-202. Flores argues that he should have been allowed to amend his
complaint. Flores also argues that he was denied due process and that he had
a liberty interest in his custodial classification. He states that his lawsuit seeks
correction of his prison records and monetary damages from the individual
defendants who have caused him irreparable mental and physical harm.
      Under § 1915(e)(2)(B)(ii), a district court must dismiss a prisoner’s IFP
civil rights complaint if it determines that the action fails to state a claim upon
which relief may be granted. See Black v. Warren, 134 F.3d 732, 733-34 (5th Cir.
1998). A dismissal for failure to state a claim is reviewed de novo. Id.
      Flores’s claim for injunctive relief to correct his prison records, even if he
could amend to state a claim, is mooted by his death. See Rhodes v. Stewart, 488
U.S. 1, 4 (1988) (holding that death of prisoner mooted claim for injunctive relief
seeking modification of prison policy); Copsey v. Swearingen, 36 F.3d 1336, 1339
n.3 (5th Cir. 1994) (stating that claims for injunctive and declarative relief
mooted by death).



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                                   No. 09-40159

         The district court properly dismissed Flores’s claims for damages against
the individual defendants because only agencies may be sued under the Privacy
Act. See Connelly v. Comptroller of the Currency, 876 F.2d 1209, 1215 (5th Cir.
1989). An amendment to name the agency as the proper defendant would have
been futile because in 2002, the BOP promulgated regulations exempting its
Inmate Central Records System from § 552a(e)(5) and from § 552a(g), the civil
remedies provision. See 28 C.F.R. § 16.97(a)(4), (j); see also Martinez v. Bureau
of Prisons, 444 F.3d 620, 624 (D.C. Cir. 2006) (affirming dismissal of Privacy Act
claim for damages because records exempt from accuracy provisions).
         Flores’s constitutional claims under the Eighth and Fifth Amendments
against the individual federal employees are properly construed as claims
brought pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau
of Narcotics, 403 U.S. 388 (1971). Flores alleged the facts underlying his Eighth
Amendment claim for deliberate indifference for the first time in his appellate
brief.    These facts form the basis for his Eighth Amendment claim in his
separate lawsuit in Flores v. Lappin. New claims not raised in the district court
need not be addressed for the first time on appeal. Williams v. Ballard, 466 F.3d
330, 335 (5th Cir. 2006). Thus, we do not address Flores’s Eighth Amendment
claim.
         As for his Fifth Amendment due process argument, Flores mentioned the
Fifth Amendment generally in his complaint. In his objections to the magistrate
judge’s report, he did not complain that the magistrate judge had failed to
address his Fifth Amendment claim. Review is for plain error because Flores
did not object to the magistrate judge’s report on this basis, despite having been
warned that the failure to object would result in plain error review of his
contentions on appeal. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415,
1428-29 (5th Cir. 1996) (en banc). Given that Flores made a single reference to
the Fifth Amendment in his complaint without further elaboration of the facts
and failed to mention his Fifth Amendment claim in his objections, Flores has

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                                No. 09-40159

not shown an error that is clear or obvious. See Puckett v. United States, 129
S. Ct. 1423, 1429 (2009).
      The district court did not err in dismissing Flores’s complaint for failure
to state a claim. See Black, 134 F.3d at 733-34.
      AFFIRMED.




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