Chavez v. Prasifka , 108 F. App'x 985 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 22, 2004
Charles R. Fulbruge III
Clerk
No. 04-40152
Summary Calendar
TONY CHAVEZ,
Plaintiff-Appellant,
versus
THOMAS PRASIFKA, Senior Warden; RICHARD MORRIS, Major; MARY A
GONZALES, Head of Classification; S CULVER, Officer; HODGE,
Warden,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
(C-02-CV-372)
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Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Tony Chavez (“Chavez”), Texas prisoner
#868675, appeals the magistrate judge’s grant of summary judgment
to the defendants in his 42 U.S.C. § 1983 action concerning an
assault on Chavez by an inmate named Armon Shepard (“Shepard”).
Chavez alleged that the defendants were deliberately indifferent to
a substantial risk of serious harm to him by reclassifying Shepard
to a lower security level and allowing him to share a cell with
*
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this opinion should not be published and is not precedent except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.
Chavez. Chavez argues that he produced evidence sufficient to show
a genuine issue of material fact as to whether Warden Hodge was
deliberately indifferent to a substantial risk of serious harm to
him by overriding the state computer’s recommended security
classification for Shepard. Chavez also asserts that the
magistrate judge misconstrued his arguments when ruling on Warden
Hodge’s motion for summary judgment.
We review the grant of a motion for summary judgment de novo.
Guillory v. Domtar Indus., Inc., 95 F.3d 1320, 1326 (5th Cir.
1996). Shepard produced no direct evidence showing that Warden
Hodge made the inference that reclassifying Shepard created a
substantial risk of serious harm. Considering the summary judgment
evidence in the light most favorable to Chavez, it does not show
that the risk was so obvious that Warden Hodge must have made the
inference. This is insufficient to create a genuine issue of
material fact as to whether Warden Hodge was deliberately
indifferent to a substantial risk of serious harm to Chavez. See
Adames v. Perez, 331 F.3d 508, 514 (5th Cir. 2003). Therefore, the
magistrate judge did not err in granting summary judgment to Warden
Hodge on the merits and finding that Warden Hodge was entitled to
qualified immunity. See McClendon v. City of Columbia, 305 F.3d
314, 326-27 (5th Cir. 2002) (en banc). The record refutes Chavez’s
contention that the magistrate judge misconstrued his arguments.
As Chavez does not argue that the magistrate judge erred by
granting summary judgment to Warden Thomas Prasifka, Major Richard
2
Morris, Mary A. Gonzales, and S. Culver, he has waived all such
arguments. See Brinkmann v. Dallas County Deputy Sheriff Abner,
813 F.2d 744, 748 (5th Cir. 1987).
AFFIRMED.
3