* 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that this opinion should not be published and is not precedent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.

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).
No. 00-20231

-2-

** Unpublished opinions issued before January 1, 1996, have

precendential value. 5TH CIR. R. 47.5.3.

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).
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.