IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-50803
Conference Calendar
BARBARA JO WEBB,
Plaintiff-Appellant,
versus
WAYNE SCOTT; PAMELA WILLIAM; Warden of Hobby Unit,
Marlin, Texas; KENNETH SELLER, Correctional Officer 3,
Officer at TDCJ-ID; POLLY ANDERSON,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. W-97-CV-242
--------------------
June 13, 2000
Before JOLLY, DAVIS, and STEWART, Circuit Judges.
PER CURIAM:*
Barbara Jo Webb (Webb), Texas inmate # 335682, appeals the
dismissal of her complaint under 42 U.S.C. § 1983 against
defendants pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure
to adequately state a claim.
We review dismissals under § 1915(e)(2)(B)(ii) for failure
to state a claim de novo, using the same standard applicable to
dismissals under Fed. R. Civ. P. 12(b)(6). Black v. Warren, 134
F.3d 732, 734 (5th Cir. 1998).
*
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that this opinion should not be published and is not precedent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.
No. 99-50803
-2-
Webb alleged that Kenneth Sellers, a correctional officer at
the Hobby Unit of the Texas Department of Criminal Justice
(TDCJ), confiscated a letter from her cell. She alleged this
action denied her access to the courts because she wished to
introduce the letter into evidence in a pending criminal state
court action. A criminal defendant’s right of access to the
courts is not infringed if she is represented by counsel. See
Tarter v. Hury, 646 F.2d 1010, 1014 (5th Cir. 1981). As Webb
alleged that she was represented by court-appointed counsel in
the pending state criminal action, she cannot establish a
constitutional injury based upon this claim. Because Sellers'
actions did not rise to the level of constitutional injury,
Webb's claim of retaliation was properly dismissed. See McDonald
v. Steward, 132 F.3d 225, 231 (5th Cir. 1998).
Webb's amending complaint asserted that she had "been denied
to buy fan. [Sic] For heat and comply with medical need while
tempture [sic] were over in the 100%." The magistrate judge did
not address this claim in his order. On appeal, Webb alleges
that she needed this fan because she suffers from hypertension
and that Polly Anderson was the correctional officer that refused
to let her buy a fan. The Eighth Amendment proscribes medical
care that is “sufficiently harmful to evidence deliberate
indifference to serious medical needs.” Estelle v. Gamble, 429
U.S. 97, 106 (1976); Farmer v. Brennan, 511 U.S. 825, 847 (1994).
Webb's amending complaint made a conclusional statement that she
needed a fan for medical reasons. The complaint did not
establish that Anderson was deliberately indifferent to her
No. 99-50803
-3-
medical needs or that her medical need was serious. Accordingly,
the failure of the magistrate judge to address this claim was
harmless error and this claim is dismissed pursuant to
§ 1915(e)(2)(B)(ii).
Because the actions of Sellers and Anderson did not rise to
the level of constitutional injury, Webb has not shown that
Pamela Williams, warden at the Hobby Unit of the TDCJ, or Wayne
Scott, director of the TDCJ, knowingly acquiesced in the
misconduct of others or that the magistrate judge erred in
dismissing her claims against them. See Thompkins v. Belt, 828
F.2d 298, 304 (5th Cir. 1987).
Webb failed to challenge the magistrate judge’s judgment
with respect to confiscation of her personal property and
defendants' alleged violations of state laws and TDCJ rules.
These claims are abandoned. Yohey v. Collins, 985 F.2d 222, 224-
25 (5th Cir. 1993). We also do not address Webb's claim of
sexual harassment by a correctional officer not named in this
action as this claim is made for the first time on appeal. See
Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir.
1999).
AFFIRMED.