Clifton Brumley v. Brad Livingston , 459 F. App'x 470 ( 2012 )

Case: 10-41031 Document: 00511749162 Page: 1 Date Filed: 02/06/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 6, 2012
No. 10-41031
Summary Calendar Lyle W. Cayce
Clerk
CLIFTON BRUMLEY,
Plaintiff-Appellant
v.
BRAD LIVINGSTON, Executive Director, Texas Department of Criminal
Justice, Institutional Division; OWEN MURRAY, Executive Director, University
of Texas Medical Branch, CMHC; DAVID SWEETIN, Senior Warden, Eastham
Unit, Texas Department of Criminal Justice, Institutional Division; GREGORY
OLIVER, Assistant Warden, Eastham Unit, Texas Department of Criminal
Justice, Institutional Division; BRENDA HOUGH, Nurse Practitioner, Eastham
Unit, Texas Department of Criminal Justice, Institutional Division,
Defendants-Appellees
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:10-CV-27
Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
Clifton Brumley, Texas prisoner # 779894, appeals the denial of
permission to withdraw his consent to proceed before the magistrate judge (MJ),
denial of his Federal Rule of Civil Procedure 59(e) motion, dismissal pursuant
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-41031 Document: 00511749162 Page: 2 Date Filed: 02/06/2012
No. 10-41031
to 28 U.S.C. § 1915A(b)(1) of his 42 U.S.C. § 1983 complaint, and calculation of
the appellate filing fee. We AFFIRM.
The MJ acted within her discretion by denying Brumley permission to
withdraw his consent to proceed before her because he failed to demonstrate
good cause for withdrawing his consent. See Carter v. Sea Land Servs., Inc., 816
F.2d 1018, 1021 (5th Cir. 1987).
Because the MJ held a hearing pursuant to Spears v. McCotter, 766 F.2d
179 (5th Cir. 1985), granting leave to amend prior to dismissal was not necessary
in this case. The MJ therefore did not abuse her discretion by denying
Brumley’s Rule 59(e) motion in which he added new claims. See Schiller v.
Physicians Res. Grp., Inc., 342 F.3d 563, 566 (5th Cir. 2003).
The MJ did not err by dismissing Brumley’s claims related to medical
treatment. The claims based on the denial of treatment for his spider bite,
hernia, and thyroid disease were untimely. See Whitt v. Stephens Cnty., 529
F.3d 278, 282 (5th Cir. 2008). The claim regarding the denial in 2009 of thyroid
medication and a medical diet was brought as a retaliation claim in the district
court. To the extent that Brumley is now raising a claim for the denial of
medical treatment, this claim will not be considered because he is raising it for
the first time on appeal. See Jennings v. Owens, 602 F.3d 652, 657 n.7 (5th Cir.
2010). Brumley has abandoned the retaliation claim by failing to reurge it in his
brief. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). Because
Brumley fails to demonstrate a constitutional violation related to his medical
claims, his claims against the supervisory officials fail as well. See Thompkins
v. Belt, 828 F.2d 298, 304 (5th Cir. 1987).
Brumley fails to demonstrate a protected liberty interest in avoiding
confinement in administrative segregation or being able to identify evidence to
substantiate his grievances . See Wilkinson v. Austin, 545 U.S. 209, 223 (2005);
Sandin v. Conner, 515 U.S. 472, 483-84 (1995). Therefore, the MJ did not err by
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No. 10-41031
dismissing the claims regarding administrative segregation and the grievance
system.
The MJ also did not err by dismissing Brumley’s claims based on the
conditions of confinement. Brumley failed to state an Eighth Amendment claim
based on the denial of food, recreation, and showers because he failed to properly
allege that he was subjected to a substantial risk of harm. See Hernandez v.
Velasquez, 522 F.3d 556, 560-61 (5th Cir. 2008); Berry v. Brady, 192 F.3d 504,
508 (5th Cir. 1999). The claim regarding excessive heat during the winter was
not properly before the district court. See Riley v. Collins, 828 F.2d 306, 307 (5th
Cir. 1987). The claim regarding lockdowns was not properly before the district
court, and Brumley’s presentation of it on appeal is conclusory. See Kinash v.
Callahan, 129 F.3d 736, 738 (5th Cir. 1997); Riley, 828 F.2d at 307.
The MJ’s assessment of an initial partial filing fee of $5 and thereafter
$450, the balance of the appellate filing fee, in installments of 20 percent of the
preceding month’s income credited to Brumley’s prison account was in
accordance with 28 U.S.C. § 1915(b).
The judgment of the district court is affirmed. The district court’s
dismissal of Brumley’s § 1983 complaint as frivolous and for failure to state a
claim upon which relief may be granted counts as a strike for purposes of
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).
Brumley is warned that if he accumulates three strikes, he will not be allowed
to proceed IFP in any civil action or appeal unless he is under imminent danger
of serious physical injury. See § 1915(g).
AFFIRMED; SANCTION WARNING ISSUED.
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