Case: 09-41191 Document: 00511183525 Page: 1 Date Filed: 07/23/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 23, 2010
No. 09-41191
Summary Calendar Lyle W. Cayce
Clerk
JOE A. COOK,
Plaintiff-Appellant
v.
MCCONNELL UNIT; AURELIO AMBRIZ; MATT BARBER; ERNEST H.
GUTIERREZ, JR.; OSCAR MENDOZA; EXECUTIVE DIRECTOR BRAD
LIVINGSTON,
Defendants-Appellees
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 2:08-CV-379
Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Joe A. Cook, Texas prisoner # 1427038, appeals the dismissal of his in
forma pauperis 42 U.S.C. § 1983 complaint for failure to protect as frivolous and
for failure to state a claim upon which relief can be granted. Cook filed suit
against various prison officials and Texas Department of Criminal Justice
(TDCJ) officials. He alleged that he had been threatened by members of the
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-41191
Aryan Brotherhood and that the defendants failed to provide the requisite
protection. Cook also filed numerous motions for injunction relief, requesting
that he be placed in federal protective custody or not be placed in the general
prison population.
The magistrate judge (MJ) recommended dismissing Cook’s claims against
two prison officials because he had not shown that they were “indifferent to his
safety” or that he was “incarcerated under conditions posing a substantial risk
of serious harm,” as required to state a claim for failure to protect under the
Eighth Amendment. Neals v. Norwood, 59 F.3d 530, 533 (5th Cir. 1995). The
MJ recommended dismissing Cook’s claims against the warden and the TDCJ
officials because he had not established that they had any personal involvement
in his classification or placement. The MJ recommended denying Cook’s motions
for injunctive relief.
Cook filed timely objections to the MJ’s recommendations; however, in
adopting the MJ’s recommendations, the district court incorrectly noted that
Cook had not filed objections, dismissed his suit, and denied injunctive relief.
Cook then filed two motions to “reinstate” his case. After Cook filed his brief in
this court, the district court granted his motions to reconsider. However, after
a de novo review, the district court denied his motion to reinstate his case.
Cook’s liberally construed brief, see Grant v. Cuellar, 59 F.3d 523, 524 (5th
Cir. 1995), raises three arguments: (1) that simply because he filed timely
objections to the MJ’s recommendation, his case should proceed to trial; (2) that
he stated a claim for failure to protect; and (3) that the district court should have
considered his objections to the MJ’s recommendation before dismissing his
complaint.
This court reviews dismissals for failure to state a claim under
§ 1915(e)(2)(B) de novo, using the same standard applicable to dismissals
pursuant to F ED. R. C IV. P. 12(b)(6). See Black v. Warren, 134 F.3d 732, 733-34
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No. 09-41191
(5th Cir. 1998). This court reviews dismissals under § 1915A de novo as well.
Ruiz v. United States, 160 F.3d 273, 275 (5th Cir. 1998).
Cook’s first argument is without merit because the district court dismissed
his complaint because there was no clear error in the MJ’s recommendation, not
solely because he failed to file objections. Cook’s second argument is likewise
without merit because he has failed to show that he was “incarcerated under
conditions posing a substantial risk of serious harm and that prison officials
were deliberately indifferent to his need for protection.” Neals, 59 F.3d at 533.
Cook has also failed to show personal involvement on the part of the warden and
the TDCJ officials. Lozano v. Smith, 718 F.2d 756, 768 (5th Cir. 1983). Cook’s
third argument is unavailing because the district court considered his objections
when granting his motions to reconsider and denying his motion to reinstate his
case; thus, any error in failing to consider his objections is harmless. See Smith
v. Collins, 964 F.2d 483, 485 (5th Cir. 1992). Finally, Cook has not shown that
the district court abused its discretion in denying injunctive relief. Nichols v.
Alcatel USA, Inc., 532 F.3d 364, 372 (5th Cir. 2008).
AFFIRMED
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