UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 95-20513 Summary Calendar

BILLY D. JEFFERY,

Plaintiff-Appellant,

VERSUS

JAMES A. COLLINS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION; JOSE F. LUNA; HASSEL R. TERRY; GARY L. JOHNSON; JACK N. EASTLAND; KELLY S. ENLOE; JOSEPH E. BLANTON; BETTINA A. COLEMAN; WESLEY W. ATKINSON; DAVID A PRICE; TERRENCE L. MCCLOUD; CHARLES L. KRAATZ; TODD C. CASCEATO; MARJORIE A. HOLIDAY; MICHAEL A. NASH; V. HOWARD,

Defendants-Appellees.

Appeal from the United States District Court For the Southern District of Texas (H-95-CV-452) November 30, 1995

Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:1 Appellant Jeffery, a Texas Department of Criminal Justice

inmate, sued numerous department employees under

.

After allowing amendment of the complaint and obtaining additional

1 Local Rule 47.5 provides: “The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession.” Pursuant to that Rule, the Court has determined that this opinion should not be published. information by interrogatories, the district court concluded that

Jeffery had no reasonable chance of success; that his complaint was

frivolous, and she dismissed the suit under

(d).

Jeffery appealed. We affirm in part, and vacate and remand in

part.

Appellant asserts in this Court the following issues:

(1) Liability of a prison guard for failure to prevent an

attack by another inmate.

(2) Liability of supervisors and classification committee

members.

(3) Whether a failure to protect claim raises a constitutional

issue.

(4) Whether refusal to provide Appellant with a shower raises

a constitutional issue.

(5) Whether placement of a hostile inmate in Appellant’s cell

raises a constitutional issue.

Appellant’s claim against Corrections Officer Jack Eastland

stems from a physical attack on Appellant by fellow inmate Johnny

Singleton. Appellant alleges that Singleton told him that

Appellant had to provide sexual favors to an inmate or fight and

that, when Appellant refused, Singleton spoke with Officer Eastland

and then returned to Appellant stating that he had Eastland’s

permission to “open the floor” unless Appellant complied. Jeffery

continued to refuse. Shortly thereafter, another inmate struck

Appellant several times and Officer Eastland did not intervene to

protect Appellant until it was apparent that Appellant would not

2 defend himself. Jeffery also alleged that Eastland refused to take

any action against the inmate who struck Appellant.

To succeed on this failure to protect claim Jeffery must 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 v. Norwood,

(5th Cir. 1995). To show that the corrections officer

acted with deliberate indifference Jeffrey must show that Officer

Eastland was both aware of facts from which the inference could be

drawn that a substantial risk of serious harm existed, and that he

did in fact draw that inference.

Whether a prison official

had the requisite knowledge of a substantial risk of harm is a

question of fact.

. If Appellant could prove his

allegations he could arguably state a claim for failure to protect

against Officer Eastland. The claim was, therefore, not frivolous

and its dismissal as such was premature.

Appellant’s remaining claims are frivolous and were properly

dismissed.

There is no vicarious liability under § 1983 so those claims

made against persons in their supervisory capacity only, and who

are not alleged to have had any personal involvement in the affair,

are frivolous.

There can be no constitutional claim stated against members of

the classification committee because inmates have neither property

nor liberty interests in their custodial classification. Neals,

.

3 The failure to protect claim arising from the incident which

occurred while Appellant was being returned from the showers does

not state a constitutional violation because it did not involve a

substantial risk of serious harm. See Neals,

.

Likewise, the allegation that Appellant was refused a shower

does not raise a constitutional issue. See Smith v. McCleod,

(5th Cir. 1991); Holloway v. Gunnell,

,

156 and n.6 (5th Cir. 1982).

Nor do the allegations relating to the incident returning from

the shower and the deprivation of a shower state a claim of

unconstitutional retaliation because there are no factual

allegations to support the inference that the motivation of the

corrections officers was retaliation. Woods v. Smith,

(5th Cir. 1995); Woods v. Edwards,

(5th Cir. 1995).

Finally, Appellant contends that a hostile inmate was placed

in his cell in retaliation for the filing of this proceeding. But

that claim fails for lack of allegation of facts from which it can

be inferred that the placement of the inmate in Appellant’s cell

was motivated by retaliation. The request for injunctive relief

against the officers arising out of this incident is rendered moot

by the fact that Appellant has been transferred.

AFFIRMED IN PART and VACATED and REMANDED IN PART.

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