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this opinion should not be published and is not precedent except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

United States Court of Appeals

Fifth Circuit

FILED

October 27, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-41520

Summary Calendar

 

HARRY J. WHITMAN,

Plaintiff-Appellant,

versus

TERRI WASHINGTON; ERNEST C. CHANDLER, Warden; JEFF LOFTIN;

Lieutenant; MIKE COOKSEY; RONALD THOMPSON; R.A. SMITH;

RICHARD ENGELE,

Defendants-Appellees.

--------------------

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 1:01-CV-302

--------------------

Before WIENER, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

Harry J. Whitman, federal prisoner #23111-037, appeals from

the grant of summary judgment for the defendants in his action

brought pursuant to Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971). He contends that the

district court erred by granting summary judgment on his claims

that the defendants failed to protect him and placed him in

unsuitable conditions of confinement; that he was not barred by
No. 03-41520

-2-

42 U.S.C. § 1997e(e) from obtaining nominal and punitive damages;

that the district court erred by granting summary judgment on his

claim that he was deprived of due process when he was placed in

segregation; that the district court erred by dismissing his

claims against defendant Richard Engele; that the district court

erred by disposing of his case without allowing adequate

discovery; that the district court erred by converting the

defendants’ motion to dismiss his complaint into a motion for

summary judgment; and that the district court erred by denying

his motion for appointment of counsel. Whitman also moves for

appointment of counsel on appeal; his motion for appointment of

counsel is DENIED.

Whitman had no claim for actual damages on his Eighth

Amendment claims, as he did not allege an actual physical injury. 

See Herman v. Holiday, 238 F.3d 660, 665 (5th Cir. 2001)

(conditions of confinement); Jones v. Greninger, 188 F.3d 322,

326 (5th Cir. 1999)(failure to protect). Whitman’s request for

injunctive relief became moot when he was transferred. See

Herman, 238 F.3d at 665. We address the merits of Whitman’s

underlying Eighth Amendment contentions, as Whitman could have

received nominal damages had he prevailed on those contentions in

the district court. See Williams v. Kaufman County, 352 F.3d

994, 1014-15 (5th Cir. 2003).

The evidence in the record indicated that the defendants

were not deliberately indifferent to Whitman’s safety during his
No. 03-41520

-3-

stay at the U.S. Penitentiary in Beaumont, Texas. See Neals v.

Norwood, 59 F.3d 530, 533 (5th Cir. 1995). Whitman’s allegations

do not suggest that the conditions of his confinement resulted in

more than de minimis injury to Whitman. See Smith v. McCleod,

946 F.2d 417, 418 (5th Cir. 1991). 

Whitman’s contention regarding his confinement in

segregation is unavailing. He had no liberty interest in

remaining outside of segregation. See Pinchardo v. Kinker, 73

F.3d 612, 612-13 (5th Cir. 1996).

Whitman’s substantive appellate contentions are unavailing. 

Moreover, Whitman does not indicate what claims he made against

Engele in particular or how he could have countered those claims

had he realized that Engele was included in the judgment in the

instant case. Whitman has not shown that the district court’s

disposition of his claims against Engele constituted reversible

error. See FED. R. CIV. P. 61 (harmless error).

Given the disposition of Whitman’s underlying substantive

claims, Whitman cannot demonstrate any abuse of discretion

regarding his discovery requests. See Mayo v. Tri-Bell Indus.,

Inc., 787 F.2d 1007, 1012 (5th Cir. 1986). Whitman’s argument

regarding the conversion of the motion to dismiss into a motion

for summary judgment lacks a factual basis. The defendants moved

for summary judgment in the alternative to dismissal under Rule

12(b)(6). 
No. 03-41520

-4-

Whitman raised run-of-the-mill prisoner civil rights claims

in his action, and his pleadings demonstrated reasonable

competency in presenting those claims. No appointment of counsel

was necessary. See Ulmer v. Chancellor, 691 F.2d 209, 213 (5th

Cir. 1982).

AFFIRMED.