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that this opinion should not be published and is not precedent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

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 99-50803

Conference Calendar

 

BARBARA JO WEBB,

Plaintiff-Appellant,

versus

WAYNE SCOTT; PAMELA WILLIAM; Warden of Hobby Unit,

Marlin, Texas; KENNETH SELLER, Correctional Officer 3,

Officer at TDCJ-ID; POLLY ANDERSON,

Defendants-Appellees.

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

Appeal from the United States District Court

for the Western District of Texas

USDC No. W-97-CV-242

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

June 13, 2000

Before JOLLY, DAVIS, and STEWART, Circuit Judges.

PER CURIAM:*

Barbara Jo Webb (Webb), Texas inmate # 335682, appeals the

dismissal of her complaint under 42 U.S.C. § 1983 against

defendants pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure

to adequately state a claim.

We review dismissals under § 1915(e)(2)(B)(ii) for failure

to state a claim de novo, using the same standard applicable to

dismissals under Fed. R. Civ. P. 12(b)(6). Black v. Warren, 134

F.3d 732, 734 (5th Cir. 1998). 
No. 99-50803

-2-

Webb alleged that Kenneth Sellers, a correctional officer at

the Hobby Unit of the Texas Department of Criminal Justice

(TDCJ), confiscated a letter from her cell. She alleged this

action denied her access to the courts because she wished to

introduce the letter into evidence in a pending criminal state

court action. A criminal defendant’s right of access to the

courts is not infringed if she is represented by counsel. See

Tarter v. Hury, 646 F.2d 1010, 1014 (5th Cir. 1981). As Webb

alleged that she was represented by court-appointed counsel in

the pending state criminal action, she cannot establish a

constitutional injury based upon this claim. Because Sellers'

actions did not rise to the level of constitutional injury,

Webb's claim of retaliation was properly dismissed. See McDonald

v. Steward, 132 F.3d 225, 231 (5th Cir. 1998). 

Webb's amending complaint asserted that she had "been denied

to buy fan. [Sic] For heat and comply with medical need while

tempture [sic] were over in the 100%." The magistrate judge did

not address this claim in his order. On appeal, Webb alleges

that she needed this fan because she suffers from hypertension

and that Polly Anderson was the correctional officer that refused

to let her buy a fan. The Eighth Amendment proscribes medical

care that is “sufficiently harmful to evidence deliberate

indifference to serious medical needs.” Estelle v. Gamble, 429

U.S. 97, 106 (1976); Farmer v. Brennan, 511 U.S. 825, 847 (1994). 

Webb's amending complaint made a conclusional statement that she

needed a fan for medical reasons. The complaint did not

establish that Anderson was deliberately indifferent to her
No. 99-50803

-3-

medical needs or that her medical need was serious. Accordingly,

the failure of the magistrate judge to address this claim was

harmless error and this claim is dismissed pursuant to

§ 1915(e)(2)(B)(ii).

Because the actions of Sellers and Anderson did not rise to

the level of constitutional injury, Webb has not shown that

Pamela Williams, warden at the Hobby Unit of the TDCJ, or Wayne

Scott, director of the TDCJ, knowingly acquiesced in the

misconduct of others or that the magistrate judge erred in

dismissing her claims against them. See Thompkins v. Belt, 828

F.2d 298, 304 (5th Cir. 1987). 

Webb failed to challenge the magistrate judge’s judgment

with respect to confiscation of her personal property and

defendants' alleged violations of state laws and TDCJ rules.

These claims are abandoned. Yohey v. Collins, 985 F.2d 222, 224-

25 (5th Cir. 1993). We also do not address Webb's claim of

sexual harassment by a correctional officer not named in this

action as this claim is made for the first time on appeal. See

Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir.

1999). 

AFFIRMED.