IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20231
Summary Calendar
ROGER LEE DICKERSON,
Plaintiff-Appellant,
versus
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION;
FRED FIGUEROA; OFFICER CHAMBERS; OFFICER
THOMPSON; OFFICER DAVIS; KENT RAMSEY; M. BROCK,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-98-CV-2625
--------------------
September 14, 2000
Before DAVIS, JONES, and DeMOSS, Circuit Judges.
PER CURIAM:*
Roger Lee Dickerson, Texas prisoner # 371312. challenges the
district court’s sua sponte dismissal of his civil rights
complaint as frivolous and for failure to state a claim. Review
of a dismissal as frivolous is for abuse of discretion. Siglar
v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997). Review of a
dismissal for failure to state a claim is de novo. Black v.
Warren, 134 F.3d 732, 733-34 (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that this opinion should not be published and is not precedent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. 00-20231
-2-
Dickerson asserts that the district court erred in
dismissing his Eighth Amendment and due process claims arising
from three occasions during which he was removed from the prison
dining hall without being allowed to eat a meal. He has failed
to show that the district court abused its discretion in
dismissing his claims on this ground. See Talib v. Gilley, 138
F.3d 211, 214 n.3 (5th Cir. 1998); Berry v. Brady, 192 F.3d 504,
508 (5th Cir. 1999). Dickerson also contends that the district
court improperly failed to review his claims of retaliation and
harassment. Only one of his food deprivations, on July 5, 1997,
arguably raises an assertion of retaliation. See McDonald v.
Steward, 132 F.3d 225, 231 (5th Cir. 1998). Dickerson has failed
to show, however, that this single incident, resulting in de
minimis consequences, set forth a constitutional violation.
Gibbs v. King, 779 F.2d 1040, 1046 (5th Cir. 1986); Ordaz v.
Lynaugh, No. 93-4290 (5th Cir. April 15, 1994)**.
Dickerson maintains that the district court also erred in
dismissing his claims against supervisors brought under a theory
of respondeat superior for failure to state a claim. Recovery is
unavailable under 42 U.S.C. § 1983 on a theory of vicarious
liability. See Baskin v. Parker, 602 F.2d 1205, 1207-08 (5th
Cir. 1979). Dickerson has not shown that the supervisory
defendants actively participated in the deprivation of food or
that they instituted a policy of food deprivation that resulted
in an injury. Baker v. Putnal, 75 F.3d 190, 199 (5th Cir. 1996).
**
Unpublished opinions issued before January 1, 1996, have
precendential value. 5TH CIR. R. 47.5.3.
No. 00-20231
-3-
Dickerson contends that the district court erred in
dismissing his complaint without holding a hearing pursuant to
Spears v. McCotter, 766 F.2d 179, 181-82 (5th Cir. 1985), and
without permitting him to amend his complaint. This court cannot
say that Dickerson’s allegations, if developed further, “might
have presented a nonfrivolous section 1983 claim.” Eason v.
Thaler, 14 F.3d 8, 9 (5th Cir. 1994). Further development is
therefore unnecessary. Id. The district court’s dismissal of
Dickerson’s complaint is AFFIRMED.
Dickerson has also requested appointment of counsel. He has
failed to show that exceptional circumstances warranting such an
appointment exist. See Ulmer v. Chancellor, 691 F.2d 209, 212
(5th Cir. 1982). The motion is DENIED.
AFFIRMED; MOTION FOR APPOINTMENT OF COUNSEL DENIED.