IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-31015

Summary Calendar

DONALD RAY VICKS,

Plaintiff - Appellant

v.

ROBERT TANNER, Warden; KEITH BICKHAM, Assistant Warden; 

JOHNNY GERALD, Assistant Warden,

Defendants - Appellees

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:13-CV-4773

Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

In his pro se 42 U.S.C. § 1983 complaint, Donald Ray Vicks, Louisiana 

prisoner # 397218, challenged, inter alia, prison officials’ refusal to exempt him

from a policy requiring inmates housed in extended lockdown to wear 

mechanical restraints on their arms and legs during their weekly five hours of 

outdoor exercise. Vicks, who is HIV-positive and diabetic, asserted: his 

 

* 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

December 10, 2015

Lyle W. Cayce

Clerk

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medical conditions necessitated more vigorous exercise than the restraints

permit; therefore, defendants’ refusal to exempt him from the restraints policy 

constituted cruel and unusual punishment under the Eighth Amendment.

The district court granted summary judgment against Vicks’ claims. 

Proceeding pro se, he contests the court’s: granting summary judgment;

refusing to conduct a hearing pursuant to Spears v. McCotter, 766 F.2d 179 

(5th Cir. 1985), overruled on other grounds by Neitzke v. Williams, 490 U.S. 

319, 324 (1989); and denying his motion to appoint counsel.

A summary judgment is reviewed de novo, “using the same standard as 

that employed by the district court”. McFaul v. Valenzuela, 684 F.3d 564, 571 

(5th Cir. 2012). Summary judgment must be granted “if 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). To establish an 

Eighth Amendment violation based on the conditions of his confinement, Vicks 

must show: the deprivation alleged was “sufficiently serious[,] . . . result[ing]

in the denial of the minimal civilized measure of life’s necessities”; and,

defendants acted with “deliberate indifference to [his] health or safety”. 

Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotation marks 

omitted). To show a “sufficiently serious” deprivation, Vicks must prove “he is 

incarcerated under conditions posing a substantial risk of serious harm”. Id.

“Although deprivation of exercise is not per se cruel and unusual 

punishment, in particular circumstances ‘a deprivation may constitute an 

impairment of health forbidden under the eighth amendment.’” Ruiz v. Estelle, 

679 F.2d 1115, 1152 (5th Cir. 1982) (quoting Miller v. Carson, 563 F.2d 741, 

751 n.12 (5th Cir. 1977)), amended in part, vacated in part on other grounds, 

688 F.2d 266 (5th Cir. 1982). Vicks contends his inability to exercise 

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unrestrained unconstitutionally impairs his health, which he asserts has

rapidly declined. 

Vicks presents no evidence, however, of a nexus between any

deterioration of his health and defendants’ enforcement of the out-of-cell 

restraints policy. A plaintiff’s “unsubstantiated assertions” do not suffice to 

demonstrate the existence of a genuine dispute of material fact. See, e.g.,

Carnaby v. City of Houston, 636 F.3d 183, 187 (5th Cir. 2011). Moreover, in 

district court, defendants presented uncontested evidence that Vicks’ range of 

permitted exercise is limited to walking because his required medication 

regimen makes him especially susceptible to heat-related illnesses caused by 

overexertion. Vicks did not dispute defendants’ assertion that he is able to 

walk in full restraints.

Vicks fails to show defendants’ refusal to exempt him from the out-of-cell 

restraints policy during exercise periods poses a substantial risk of serious 

harm or unconstitutionally impairs his health. See Farmer, 511 U.S. at 834;

Ruiz, 679 F.2d at 1152. Accordingly, no genuine dispute of material fact exists

in relation to his Eighth Amendment claim; summary judgment in favor of 

defendants was proper. See McFaul, 684 F.3d at 571.

The court’s refusal to conduct a Spears hearing is reviewed for abuse of 

discretion. See Payne v. Parnell, 246 F. App’x 884, 890–91 (5th Cir. 2007). A 

Spears hearing is designed to “flesh out the allegations of a prisoner’s 

complaint to determine whether . . . the complaint, lacking an arguable basis 

in law or fact, should be dismissed summarily as malicious or frivolous”. Eason 

v. Holt, 73 F.3d 600, 602 (5th Cir. 1996) (footnote omitted). Vicks’ complaint 

presented more than “conclusional allegations”, set out “exactly what scenario 

[he] claims occurred”, and identified clearly “the legal basis for the claim”. 

Spears, 766 F.2d at 180. Therefore, his complaint demonstrated his

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constitutional claim, although lacking merit, was not frivolous. See Eason, 73

F.3d at 602. Consequently, the court did not abuse its discretion in failing to 

conduct a Spears hearing.

Similarly, we find no abuse of discretion in the district court’s denying

Vicks’ motion to appoint counsel. See Ulmer v. Chancellor, 691 F.2d 209, 212–

13 (5th Cir. 1982). Vicks’ complaint advanced a single, straightforward 

constitutional claim that was properly dismissed by summary judgment, 

thereby precluding a trial. Accordingly, appointment of counsel would not have 

advanced the administration of justice. See id. at 213.

AFFIRMED.

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