Kevin Larson, Jr. v. Amy Westbrook ( 2020 )

Case: 19-40266 Document: 00515366947 Page: 1 Date Filed: 03/31/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-40266 March 31, 2020
Summary Calendar
Lyle W. Cayce
Clerk
KEVIN ARTHUR LARSON, JR.,
Plaintiff-Appellant
v.
AMY WESTBROOK,
Defendant-Appellee
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:18-CV-103
Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Kevin Arthur Larson, Jr., Texas prisoner # 7833235, proceeding pro se,
filed a civil rights action against Amy Westbrook, a prison official at the Beto
Unit, where he is incarcerated. The district court granted Westbrook’s
summary judgment motion and dismissed the action. Larson now appeals,
raising several issues.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-40266
We cannot consider Larson’s contention that he should have been
allowed to file a second amended complaint; this is because the rulings as to
this issue were made by the magistrate judge, and Larson failed to appeal the
matter to the district court. See Singletary v. B.R.X., Inc., 828 F.2d 1135, 1137
(5th Cir. 1987). As to Larson’s argument that he should have been allowed to
conduct discovery to obtain Westbrook’s employment disciplinary record and
establish that Westbrook had previously been found guilty of an offense
involving the use of force against another prisoner, Larson fails to establish an
abuse of discretion, as he has not shown how the discovery was necessary to
defeat the summary judgment motion. See King v. Dogan, 31 F.3d 344, 346
(5th Cir. 1994).
Larson also raises challenges to the grant of summary judgment.
Contrary to his contention, qualified immunity is a defense to an individual
capacity lawsuit. See Sanders-Burns v. City of Plano, 594 F.3d 366, 379 (5th
Cir. 2010). To the extent that Larson argues that summary judgment should
not have been granted because Westbrook violated the Safe Prisons Act, he
fails to show error, as neither a violation of state law, nor the failure to follow
prison policy, standing alone, establishes a violation of federal constitutional
right. See Giovanni v. Lynn, 48 F.3d 908, 912-13 (5th Cir. 1995); Hernandez
v. Estelle, 788 F.2d 1154, 1158 (5th Cir. 1986). Larson also fails to show error
to the extent he relies on Westbrook’s threats, as verbal threats and
threatening gestures, standing alone, do not amount to a constitutional
violation. See Bender v. Brumley, 1 F.3d 271, 274 n.4 (5th Cir. 1993);
McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir. 1983). Although Larson
contends that Westbrook is aware that her actions were illegal and that
various prison officials are also aware of her illegal actions, and that he has
witnesses who will testify as to her behavior, such contentions do not address
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No. 19-40266
the merits of the district court’s thorough explanation of its summary judgment
dismissal of his claims, and we “will not raise and discuss legal issues that
[Larson] has failed to assert.” Brinkmann v. Dallas Cty. Deputy Sheriff Abner,
813 F.2d 744, 748 (5th Cir. 1987).
Finally, appealing the denial of his motion for the appointment of
counsel, Larson contends that he did not have a fair opportunity to prosecute
his claims in the district court because he was confined in a segregation unit
and did not have access to legal materials. A district court is not required to
appoint counsel for an indigent plaintiff in a civil rights action unless there are
exceptional circumstances. Ulmer v. Chancellor, 691 F.2d 209, 212-13 (5th Cir.
1982). The district court should consider several factors when determining
whether to appoint counsel, including (1) the type and complexity of the case;
(2) the plaintiff’s ability to adequately present and investigate the case; (3) the
presence of a majority of evidence consisting of conflicting testimony which
requires skill in the presentation of evidence and in cross-examination; and
(4) the likelihood that the appointment will benefit the plaintiff, the
defendants, or the court by shortening the length of the trial and assisting in
a just determination of the case. Parker v. Carpenter, 978 F.2d 190, 193 (5th
Cir. 1992). Our review shows that there was no abuse of discretion. See Cupit
v. Jones,835 F.2d 82, 86 (5th Cir. 1987).
In view of the foregoing, the judgment of the district court is AFFIRMED.
Larson’s motion for the appointment of counsel is DENIED.
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