Fredrick Ward v. Pierre Jorden ( 2018 )

Case: 16-60682 Document: 00514437789 Page: 1 Date Filed: 04/19/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-60682 FILED
Summary Calendar April 19, 2018
Lyle W. Cayce
Clerk
FREDRICK A. WARD,
Plaintiff-Appellant
v.
PIERRE JORDEN; LACRETIA JACKSON; OFFICER HOLLOWAY;
DOCTOR SANTOS; NURSE BROWN; TIMOTHY GIBSON; DOCTOR BARR;
LIEUTENANT KING; MISSISSIPPI DEPARTMENT OF CORRECTIONS,
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 4:16-CV-10
Before STEWART, Chief Judge, and ELROD and HIGGINSON, Circuit
Judges.
PER CURIAM: *
Fredrick A. Ward, Mississippi prisoner # N3051, appeals the district
court’s dismissal of his 42 U.S.C. § 1983 civil suit after it granted the
defendants’ motions to dismiss and motion for summary judgment. He asserts
that the district court erred in granting the motions and in dismissing the
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 16-60682
defendants based on his failure to exhaust administrative remedies. Ward also
argues that the district court erred in denying his motion for a default
judgment against Officer Pierre Jorden. In his complaint, Ward had alleged
that Mississippi Department of Corrections (MDOC) officers used excessive
force during an assault and that they, along with MDOC medical personnel,
were deliberately indifferent to his medical needs. He further alleged that the
defendants violated his Eighth Amendment right against cruel and unusual
punishment.
We review the grant of a motion to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(6) de novo. Lampton v. Diaz, 639 F.3d 223, 225 (5th Cir.
2011). Aside from listing the procedural facts regarding the motions to dismiss
and making the conclusional assertion that he stated a sufficient deliberate
indifference claim, Ward does not make any reference to or arguments
concerning the district court’s specific reasons for granting the motions to
dismiss. Because Ward offers no basis to disagree with the district court’s
analysis, any challenges to the grant of the Rule 12(b)(6) motions are deemed
abandoned on appeal. See United States v. Scroggins, 599 F.3d 433, 446-47
(5th Cir. 2010) (concluding that issues were abandoned where appellant
merely raised an issue in the questions presented and summary sections but
did not discuss the issue in depth in the body of the brief).
We review de novo a district court’s grant of summary judgment. Nickell
v. Beau View of Biloxi, L.L.C., 636 F.3d 752, 754 (5th Cir. 2011). We also review
a dismissal for failure to exhaust administrative remedies de novo. Powe v.
Ennis, 177 F.3d 393, 394 (5th Cir. 1999). The district court granted the
MDOC’s summary judgment motion after concluding that it was entitled to
sovereign immunity. Ward does not challenge the district court’s finding that
the MDOC is entitled to sovereign immunity, nor does he challenge the district
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No. 16-60682
court’s conclusion that the MDOC’s exhaustion defense was equally applicable
to the nonmoving defendants. Accordingly, he has abandoned any review of
the district court’s grant of summary judgment to the MDOC based on
sovereign immunity under the Eleventh Amendment or the district court’s
decision to apply the failure to exhaust defense to all defendants. See
Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987).
We take a strict approach to the exhaustion requirement. See Dillon v.
Rogers, 596 F.3d 260, 268 (5th Cir. 2010). The record reveals that Ward did
not pursue the prison’s grievance procedure to its proper conclusion; therefore,
he did not meet the exhaustion requirement. See Wilson v. Epps, 776 F.3d 296,
300 n.2 (5th Cir. 2015); Wright v. Hollingsworth, 260 F.3d 357, 358 (5th Cir.
2001). Because he raises it for the first time on appeal, we will not consider
Ward’s argument that a serious medical injury interfered with his ability to
comply with the exhaustion requirement. See Celanese Corp. v. Martin K. Eby
Constr. Co., 620 F.3d 529, 531 (5th Cir. 2010).
Because Ward did not file a notice of appeal from the denial of his motion
for a default judgment against Officer Jorden, we do not have jurisdiction to
consider the district court’s denial of that motion. See Capital Parks v.
Southeastern Advertising & Sales Sys., 30 F.3d 627, 630 (5th Cir. 1994). The
judgment of the district court is AFFIRMED.
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