IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-40159

Summary Calendar

TERESA FLORES, as executrix of the Estate of Hector Flores, substituted in

place and stead of Hector Flores, deceased,

Plaintiff-Appellant

v.

JOHN FOX, Warden; GONZALEZ, Captain; G MALDONADO, JR., Regional

Director; TERRY STACHER, Unit Manager; SWAIN, Special Investigative

Supervisor; NYLON, Counselor; RUSSO, Special Investigative Supervisor; B

WRIGHT, Counselor; ARSINGER, Counselor; SUTTON, CMC,

Defendants-Appellees

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 1:08-CV-285

Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:

*

Hector Flores, federal prisoner # 45506-080, proceeding pro se and in

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forma pauperis (IFP), filed this civil rights complaint against numerous federal

United States Court of Appeals

Fifth Circuit

F I L E D

September 10, 2010

Lyle W. Cayce

Clerk

 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.

Teresa Flores, Hector Flores’s sister, was substituted as the appellant upon Hector’s 1

death.

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No. 09-40159

prison officials employed at the federal prison in Beaumont, Texas, alleging that

the defendants have willfully and intentionally failed to maintain an accurate

prison file on him, resulting in adverse effects. The district court construed

Flores’s civil action as filed pursuant to the Privacy Act, 5 U.S.C. § 552a, and

dismissed his complaint for failure to state a claim upon which relief could be

granted under 28 U.S.C. § 1915(e)(2)(B)(ii). The district court determined that

under the Privacy Act, a prisoner was not entitled to injunctive relief to correct

allegedly inaccurate records and that a civil action under the Privacy Act could

be brought against an agency, but that individuals were not liable for damages.

Flores argues that the district court erred in dismissing his complaint for

failure to state a claim. For the first time on appeal, Flores alleges facts

underlying an Eighth Amendment claim for failure to protect and deliberate

indifference, which is the subject of separate litigation in Flores v. Lappin,

No. 1:08-cv-202. Flores argues that he should have been allowed to amend his

complaint. Flores also argues that he was denied due process and that he had

a liberty interest in his custodial classification. He states that his lawsuit seeks

correction of his prison records and monetary damages from the individual

defendants who have caused him irreparable mental and physical harm.

Under § 1915(e)(2)(B)(ii), a district court must dismiss a prisoner’s IFP

civil rights complaint if it determines that the action fails to state a claim upon

which relief may be granted. See Black v. Warren, 134 F.3d 732, 733-34 (5th Cir.

1998). A dismissal for failure to state a claim is reviewed de novo. Id.

Flores’s claim for injunctive relief to correct his prison records, even if he

could amend to state a claim, is mooted by his death. See Rhodes v. Stewart, 488

U.S. 1, 4 (1988) (holding that death of prisoner mooted claim for injunctive relief

seeking modification of prison policy); Copsey v. Swearingen, 36 F.3d 1336, 1339

n.3 (5th Cir. 1994) (stating that claims for injunctive and declarative relief

mooted by death).

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The district court properly dismissed Flores’s claims for damages against

the individual defendants because only agencies may be sued under the Privacy

Act. See Connelly v. Comptroller of the Currency, 876 F.2d 1209, 1215 (5th Cir.

1989). An amendment to name the agency as the proper defendant would have

been futile because in 2002, the BOP promulgated regulations exempting its

Inmate Central Records System from § 552a(e)(5) and from § 552a(g), the civil

remedies provision. See 28 C.F.R. § 16.97(a)(4), (j); see also Martinez v. Bureau

of Prisons, 444 F.3d 620, 624 (D.C. Cir. 2006) (affirming dismissal of Privacy Act

claim for damages because records exempt from accuracy provisions).

Flores’s constitutional claims under the Eighth and Fifth Amendments

against the individual federal employees are properly construed as claims

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

of Narcotics, 403 U.S. 388 (1971). Flores alleged the facts underlying his Eighth

Amendment claim for deliberate indifference for the first time in his appellate

brief. These facts form the basis for his Eighth Amendment claim in his

separate lawsuit in Flores v. Lappin. New claims not raised in the district court

need not be addressed for the first time on appeal. Williams v. Ballard, 466 F.3d

330, 335 (5th Cir. 2006). Thus, we do not address Flores’s Eighth Amendment

claim.

As for his Fifth Amendment due process argument, Flores mentioned the

Fifth Amendment generally in his complaint. In his objections to the magistrate

judge’s report, he did not complain that the magistrate judge had failed to

address his Fifth Amendment claim. Review is for plain error because Flores

did not object to the magistrate judge’s report on this basis, despite having been

warned that the failure to object would result in plain error review of his

contentions on appeal. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415,

1428-29 (5th Cir. 1996) (en banc). Given that Flores made a single reference to

the Fifth Amendment in his complaint without further elaboration of the facts

and failed to mention his Fifth Amendment claim in his objections, Flores has

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not shown an error that is clear or obvious. See Puckett v. United States, 129

S. Ct. 1423, 1429 (2009).

The district court did not err in dismissing Flores’s complaint for failure

to state a claim. See Black, 134 F.3d at 733-34.

AFFIRMED.

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