IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-20475

Summary Calendar

RODERICK KEITH JOHNSON,

Plaintiff-Appellant

v.

JOHN DOE; BRAD LIVINGSTON, Executive Director of Texas Department of 

Criminal Justice; RICK THALER, Director of Correctional Institutions 

Division; Senior Warden RICHARD HERRERA; LANETTE LITHICUM, 

Director of Health Services Division,

Defendants-Appellees

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:12-CV-2728

Before DAVIS, CLEMENT, and COSTA, Circuit Judges.

PER CURIAM:*

Roderick Keith Johnson, Texas prisoner # 1455959, appeals the district 

court’s summary judgment dismissal of his 42 U.S.C. § 1983 action filed 

against various officials of the Texas Department of Criminal Justice (TDCJ), 

* 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 1, 2014

Lyle W. Cayce

Clerk

 

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alleging that the defendants1 violated his constitutional rights while he was 

housed in administrative segregation as a protective custody inmate.

We review the grant of summary judgment de novo, applying the same 

standards as the district court. Carnaby v. City of Houston, 636 F.3d 183, 187 

(5th Cir. 2011). Summary judgment is appropriate where the “movant shows 

that there is no genuine dispute as to any material fact and the movant is 

entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). In conducting 

our review, we view the evidence in the light most favorable to the nonmoving 

party; however, “conclusional allegations, unsupported assertions, or 

presentation of only a scintilla of evidence” are insufficient. McFaul v. 

Valenzuela, 684 F.3d 564, 571 (5th Cir. 2012).

In his brief to this court, Johnson provides only a conclusory statement 

that he “exhausted all available means,” yet he presents no argument 

challenging the determination that he did not exhaust his claim that the 

defendants failed to protect him from assault. Likewise, he does not challenge 

the determination that his retaliation claim lacked merit. Johnson thus 

abandons these issues by failing to adequately brief them. See Yohey v. Collins, 

985 F.2d 222, 224-25 (5th Cir. 1993).

With respect to his individual-capacity claims, Johnson first argues that 

the defendants violated his Eighth Amendment right to be free from cruel and 

unusual punishment because he has been confined to a single-person cell for 

23 hours per day, which he describes as total isolation, since August 2011. He 

contends that the conditions of his confinement have exacerbated his mental 

illnesses and caused him serious psychological and physical pain. Assuming 

Johnson can show a sufficiently serious deprivation, he also must show that 

1 While the summary judgment motion was pending, Johnson moved to dismiss 

Lanette Lithicum as a defendant; the district court granted his request.

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prison officials acted with “deliberate indifference” to his health or safety. 

Farmer v. Brennan, 511 U.S. 825, 834 (1994). Farmer’s subjective prong 

requires that a prisoner demonstrate that the prison official was “aware of 

facts from which the inference could be drawn that a substantial risk of serious 

harm exist[ed],” that the officer in fact drew such an inference, and that the 

officer nevertheless disregarded the risk. Id. at 837.

Johnson does not point to any competent evidence that Executive 

Director Brad Livingston, Director Rick Thaler, or Senior Warden Richard 

Herrera knew of the conditions about which he complains or that they

deliberately disregarded an excessive risk to human health or safety. See id at 

837, 843. Further, Johnson’s claim regarding the conditions in administrative 

segregation is largely premised on the defendants’ alleged use of isolation on 

an inmate, such as himself, with “serious mental illness.” However, he fails to 

explain how this risk was, as he claims, obvious to any of the defendants when 

the record demonstrates that Johnson was diagnosed only with post-traumatic 

stress disorder for which he was prescribed medication. The standard required 

to succeed on a deliberate-indifference claim is “extremely high,” and Johnson

has not met it here. See Domino v. Texas Dep’t of Criminal Justice, 239 F.3d 

752, 756 (5th Cir. 2001).

In Johnson’s second issue, he maintains that he is “totally incapacitated” 

in the administrative segregation unit and that prison officials violated his 

constitutional rights by denying him access to adequate mental health care. 

However, Johnson’s assertions that he has been denied access to mental health 

care and that he suffers from chronic mental illness, severe paranoia, 

psychosis, and suicidal thoughts are rebutted by his mental health records. 

Gobert v. Caldwell, 463 F.3d 339, 346 n.24 (5th Cir. 2006). Johnson’s claim 

essentially amounts to a disagreement with the mental health care he has been 

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provided. Such disagreement does not constitute deliberate indifference to his 

medical needs. Id. at 346.

As to his official-capacity claims, Johnson vaguely refers to 

“unconstitutional and unlawful policies and practices” regarding his mental 

illnesses. He also maintains that the defendants have “tacitly accepted . . . a 

code of silence” encouraging abuse on prisoners. These assertions, which are 

conclusory and without factual support, are insufficient to defeat summary 

judgment. See McFaul, 684 F.3d at 571.

Johnson also contends that the district court erred in denying his request 

for injunctive relief. This contention fails because he did not establish success 

on the merits. See VRC LLC v. City of Dallas, 460 F.3d 607, 611 (5th Cir. 

2006).

Finally, Johnson challenges the district court’s denial of his motion for 

the appointment of counsel. However, no exceptional circumstances exist as 

he has demonstrated an ability to litigate and his case is not complex. See 

Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982). Accordingly, the denial 

of the motion for appointment of counsel was not an abuse of discretion. See 

Baranowski v. Hart, 486 F.3d 112, 126 (5th Cir. 2007).

Viewing the evidence in the light most favorable to Johnson, defendants

Livingston, Thaler, and Herrera were entitled to judgment as a matter of law. 

See FED. R. CIV. P. 56(a). Johnson’s motion for the appointment of appellate 

counsel and his motion for an injunction pending appeal are denied.

AFFIRMED; MOTIONS DENIED.

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