The opinion
Case: 17-50155 Document: 00514566863 Page: 1 Date Filed: 07/23/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 17-50155
Fifth Circuit
FILED
Summary Calendar July 23, 2018
Lyle W. Cayce
DIANE MICHELLE ZAMORA, Clerk
Plaintiff-Appellant
v.
WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION; MELODYE
NELSON, Warden; WHITNEY FRANKS, Warden; DEBBIE RAY, Bureau of
Classification Representative; BRYAN COLLIER,
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:15-CV-365
Before DAVIS, HAYNES and GRAVES, Circuit Judges.
PER CURIAM: *
Diane Michelle Zamora, Texas prisoner # 314993, filed a civil rights
complaint against several employees of the Texas Department of Criminal
Justice, Correctional Institutions Division (TDCJ), alleging that her Eighth
Amendment right to be free from cruel and unusual punishment was violated
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-50155
when she was moved from protective custody at the Mountain View Unit to
general population at the Hobby Unit. Zamora asserted that protective
custody was necessary because her criminal case generated national media
attention and her resulting notoriety exposed her to threats and assaults by
other inmates. She sued former TDCJ Executive Director Brad Livingston;
William Stephens, former Director for the Correctional Institutions Division of
TDCJ; Melodye Nelson, Warden of the Mountain View Unit; Whitney Franks,
Assistant Warden of the Mountain View Unit; and Debbie Ray, of the State
Classification Committee. The defendants moved for summary judgment and
asserted their right to qualified immunity. The district court entered a
memorandum order and judgment granting the motion for summary
judgment. It dismissed the supervisory-capacity claims against Livingston
and Stephens, and it determined that the defendants were entitled to qualified
immunity with respect to the failure-to-protect claims. To the extent that the
defendants were sued in their official capacities for damages, the court
concluded, they were entitled to Eleventh Amendment immunity. Because
there was no constitutional violation, injunctive relief was denied.
As an initial matter, Zamora has moved this court for appointment of
counsel. Zamora’s pleadings show that she is able to present her case
adequately, and the tasks she would have appointed counsel perform are not
pertinent to this appeal because they relate to development of a case at the
trial court level. See Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir. 1982).
Thus, she has failed to show that exceptional circumstances warrant
appointment of an attorney. See id. The motion is DENIED. Zamora also
asserts that the district court erred in denying her motion for appointment of
counsel. She has not shown, however, that her case presented exceptional
circumstances or that the district court abused its discretion in refusing to
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appoint counsel. See Cupit v. Jones, 835 F.2d 82, 86 (5th Cir. 1987); Ulmer,
691 F.2d at 213.
Zamora contends that the district court erred in granting the defendants’
motion for summary judgment. Zamora had the burden of rebutting the
defendants’ qualified-immunity defense by establishing a genuine fact issue as
to the question whether the defendants’ allegedly wrongful conduct violated a
clearly established constitutional right. See Brown v. Callahan, 623 F.3d 249,
253 (5th Cir. 2010). To establish a failure-to-protect claim, a prisoner must
show that she was “incarcerated under conditions posing a substantial risk of
serious harm and that prison officials were deliberately indifferent to [her]
need for protection.” Neals v. Norwood, 59 F.3d 530, 533 (5th Cir. 1995). A
prison official acts with deliberate indifference if he or she “knows of and
disregards an excessive risk to inmate health or safety; the official must both
be aware of facts from which the inference could be drawn that a substantial
risk of serious harm exists, and [he or she] must also draw the inference.”
Farmer v. Brennan, 511 U.S. 825, 837 (1994).
In essence, Zamora’s contentions boil down to a disagreement with
prison officials over her housing status. See Neals, 59 F.3d at 533; see also
Parker v. Currie, 359 F. App’x 488, 489-90 (5th Cir. 2010). Zamora wants to be
in protective custody at the Mountain View Unit but prison officials have
determined that she should be in general population at the Hobby Unit. She
has presented no evidence showing that there is a genuine issue whether the
defendants were subjectively aware that transferring her to general population
at the Hobby Unit would expose her to a substantial risk of serious harm. See
Farmer, 511 U.S. at 837. Although Zamora believes that the defendants
retaliated against her, there was no valid constitutional claim for retaliation
because there was no underlying constitutional violation. See McDonald v.
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Steward, 132 F.3d 225, 231 (5th Cir. 1998). As to the supervisory defendants,
Zamora makes no effort to show that Stephens and Livingston were personally
involved in a constitutional deprivation, and her contention that her removal
from safekeeping was the result of an unconstitutional policy is unsupported.
See Thompkins v. Belt, 828 F.2d 298, 303-04 (5th Cir. 1987). Zamora has not
shown that the district court erred in granting the motion for summary
judgment.
In addition, Zamora asserts that the district court erred in failing to
grant her motion requesting additional time in which to conduct discovery
prior to ruling on the defendants’ dispositive motion. Zamora has not shown
that the discovery she seeks relates to information she does not already have
or that its disclosure would create a genuine issue. See Leatherman v. Tarrant
Cty. Narcotics Intelligence & Coordination Unit, 28 F.3d 1388, 1395 (5th Cir.
1994). She has not shown that the discovery she wishes to conduct is essential
to her claims, and her generalized desire for discovery about inmate attacks on
other inmates is insufficiently specific. See Raby v. Livingston, 600 F.3d 552,
561 (5th Cir. 2010). No abuse of discretion has been shown. See McCreary v.
Richardson, 738 F.3d 651, 654-55 (5th Cir. 2013).
Finally, Zamora contends that the district court erred in refusing to
grant injunctive relief. Because Zamora failed to show an underlying
constitutional violation, injunctive relief was not available. See 18 U.S.C. §
3626(a). The judgment is AFFIRMED.
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