IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-10191

Summary Calendar

JESUS VALLE,

Plaintiff-Appellant

v.

RUSTY ROGERS, Correctional Officer III; XAVIER CUTRIGHT,

Defendants-Appellees

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 1:14-CV-100

Before DAVIS, CLEMENT, and COSTA, Circuit Judges.

PER CURIAM:*

Jesus Valle, Texas prisoner # 01106935, filed a civil rights complaint 

against Officer Rusty Rogers, Officer Tommy Ramos, Officer Thomas Myers, 

Sergeant Denise Upfold, Major Anthony Adcox, Lieutenant John T. Johnson, 

and inmate Xavier Cutright. Valle was picking up food trays outside of 

inmates’ cells when he was attacked by Cutright through a bean chute door. 

Cutright was locked in his cell at the time of the attack. The magistrate judge 

 

* 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

April 12, 2018

Lyle W. Cayce

Clerk

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No. 17-10191

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(MJ), presiding by consent, dismissed the claims against Ramos, Myers, 

Upfold, Adcox, and Johnson as frivolous. The district court granted summary 

judgment in favor of Rogers and declined to exercise supplemental jurisdiction 

over Valle’s state law claims against Cutright. Valle now appeals. 

A district court shall dismiss a case if it determines that the case is 

frivolous or fails to state a claim upon which relief can be granted. 28 U.S.C. 

§ 1915(e)(2). A complaint is frivolous and lacks an arguable basis in law if it is 

based upon an indisputably meritless legal theory. Neitzke v. Williams, 490 

U.S. 319, 327 (1989). We review a § 1915 dismissal as frivolous for an abuse 

of discretion. Norton v. Dimazana, 122 F.3d 286, 291 (5th Cir. 1997).

As to Myers, Ramos, and Upfold, Valle’s claims of deliberate indifference 

do not have an arguable basis in law because Cutright’s prison classification 

would not provide grounds for an officer to be deliberately indifferent to a 

theoretical risk that Valle would be injured through a bean chute. See Adames 

v. Perez, 331 F.3d 508, 512-16 (5th Cir. 2003). His claims that Upfold and 

Johnson failed to properly train and supervise employees fail because he did 

not allege more than a single constitutional violation arising from the alleged 

lack of training or supervision. Thompson v. Upshur County, Tex., 245 F.3d 

447, 459 (5th Cir. 2001). Therefore, the magistrate judge did not abuse his 

discretion in dismissing these claims as frivolous. See Neitzke, 490 U.S. at 327.

Valle does not challenge the MJ’s dismissal of claims against Major Adcox as 

frivolous. Therefore, any challenge to the MJ’s dismissal of claims against 

Major Adcox is abandoned. See Brinkmann v. Dallas County Deputy Sheriff 

Abner, 813 F.2d 744, 748 (5th Cir. 1987). 

We review de novo the district court’s summary judgment ruling. Hyatt 

v. Thomas, 843 F.3d 172, 176 (5th Cir. 2016). Because Valle fails to raise any 

argument regarding his claims against Rogers in his official capacity, these 

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claims are abandoned. See Brinkmann, 813 F.2d at 748. Valle’s arguments 

that Rogers opened the bean chute and failed to follow policy by staying within 

five feet of him are conclusory and do not show that Rogers had requisite 

knowledge of a substantial risk to Valle’s safety. He does not show a violation 

of his constitutional rights. See Pratt v. Harris County, Tex., 822 F.3d 174, 180 

(5th Cir. 2016), cert. denied, 137 S. Ct. 1121 (2017). Moreover, he does not cite 

to any precedent supporting his assertion that Rogers’s actions were 

objectively unreasonable. See Cass v. City of Abilene, 814 F.3d 721, 728 (5th 

Cir. 2016). Therefore, the district court did not err in granting summary 

judgment in favor of Rogers. Because Valle’s federal claims were properly 

dismissed, the district court did not abuse its discretion in declining to exercise 

supplemental jurisdiction over state-law claims. See Heggemeier v. Caldwell 

County, Tex., 826 F.3d 861, 872 (5th Cir. 2016); 28 U.S.C. § 1367(c)(3). To the 

extent that Valle is raising new claims for the first time on appeal based on a 

theory of state-created danger, those claims are not properly before this court. 

See Hannah v. United States, 523 F.3d 597, 600 n.1 (5th Cir. 2008); Williams 

v. Ballard, 466 F.3d 330, 335 (5th Cir. 2006) (“Because these claims were not 

raised in the district court, we do not address them on appeal.”);

The judgment is AFFIRMED. Exceptional circumstances are not 

present in the instant case that would support the appointment of counsel. See

Ulmer v. Chancellor, 691 F.2d 209, 212-13 (5th Cir. 1982). Valle’s motion for 

appointment of counsel on appeal is DENIED. All other outstanding motions 

are DENIED. 

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