Kivinen v. ICE ( 2021 )

Case: 20-30667 Document: 00515996487 Page: 1 Date Filed: 08/26/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 20-30667 August 26, 2021
Summary Calendar Lyle W. Cayce
Clerk
Sami Kaleva Kivinen,
Plaintiff—Appellant,
versus
United States Immigration and Customs Enforcement;
United States Department of Homeland Security;
Diana Whitte, Individually and In Her Official Capacity; United
States Public Health Service; Samantha C. Morales,
Individually and In Her Official Capacity, et al,
Defendants—Appellees.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:20-CV-870
Case: 20-30667 Document: 00515996487 Page: 2 Date Filed: 08/26/2021
No. 20-30667
Before Davis, Jones, and Elrod, Circuit Judges.
Per Curiam:*
Sami Kaleva Kivinen appeals the dismissal of his civil lawsuit asserting
the defendants were deliberately indifferent to his medical needs and
subjected him to inhumane living conditions, in violation of his Eighth
Amendment rights. The district court dismissed the complaint for failure to
state a claim, pursuant to 28 U.S.C. §§ 1915A and 1915(e)(2)(b). We review
the district court’s dismissal de novo. See Praylor v. Tex. Dep’t of Crim. Just.,
430 F.3d 1208, 1209 (5th Cir. 2005).
On appeal, Kivinen makes no argument challenging the district
court’s determination that his claims against the United States, the
Department of Homeland Security, Immigration and Customs Enforcement,
and the Public Health Service were barred, nor does he challenge the district
court’s determination that the exercise of supplemental jurisdiction over his
state-law claims of negligence and malpractice was unwarranted.
Accordingly, he has abandoned any such challenge. See Yohey v. Collins,
985 F.2d 222, 224-25 (5th Cir. 1993); see also Brinkmann v. Dallas Cnty.
Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). We decline to
consider Kivinen’s claims that the defendants failed to provide a medical
mattress and pain medication for his lower back pain and that being forced to
live without functioning air conditioning at the LaSalle Correctional Center
subjected him to extremely dangerous heat, heat exhaustion, and inadequate
air quality, in violation of his Eighth Amendment rights, as those claims were
not properly presented in the district court. See Martinez v. Pompeo, 977 F.3d
457, 460 (5th Cir. 2020).
*
Pursuant to 5th Circuit Rule 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 Circuit Rule 47.5.4.
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Case: 20-30667 Document: 00515996487 Page: 3 Date Filed: 08/26/2021
No. 20-30667
Kivinen has failed to demonstrate any error in the dismissal of his
denial-of-medical-care claim. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009);
Bustos v. Martini Club, Inc., 599 F.3d 458, 461-62 (5th Cir. 2010); see also
Farmer v. Brennan, 511 U.S. 825, 837 (1994); Gobert v. Caldwell, 463 F.3d 339,
346 & 349 n.32 (5th Cir. 2006). He has likewise failed to show that the
dismissal of his living-conditions claim was error. See Ashcroft, 556 U.S. at
678; Bustos, 599 F.3d at 461-62; see also Farmer, 511 U.S. at 834; Taylor v.
Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002); Marsh v. Jones, 53
F.3d 707, 711-12 (5th Cir. 1995).
Accordingly, the district court’s judgment is AFFIRMED.
Kivinen’s motion for the appointment of counsel is DENIED. See Ulmer
v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982); 28 U.S.C. § 1915(e)(1).
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