Cornelius Wilson v. Dennis Grimes ( 2019 )

Case: 18-30475 Document: 00514958476 Page: 1 Date Filed: 05/15/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-30475 FILED
Summary Calendar May 15, 2019
Lyle W. Cayce
Clerk
CORNELIUS LORENZO WILSON,
Plaintiff-Appellant
v.
DENNIS GRIMES, Lieutenant Colonel; SID J. GAUTREAUX, III, Sheriff;
LINDA OTTESEN; CITY OF BATON ROUGE/PARISH OF EAST BATON
ROUGE CONSOLIDATED GOVERNMENT; JAMES M. LEBLANC; ROBERT
TANNER; TIMOTHY HOOPER; ABC INSURANCE COMPANIES; RAMAN
SINGH, Doctor; TAMRYA YOUNG; KAREN COMEAUX; OTHER AS YET
UNKNOWN DEFENDANTS,
Defendants-Appellees
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:15-CV-680
Before SMITH, WIENER, and WILLETT, Circuit Judges.
PER CURIAM: *
Plaintiff-Appellant Cornelius Lorenzo Wilson, Louisiana prisoner
#356241, filed a 42 U.S.C. § 1983 lawsuit against, inter alia, Sheriff Sid J.
Gautreaux, III, Lieutenant Colonel Dennis Grimes, Linda Ottesen, Raman
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-30475
Singh, M.D., Tamyra Young, and Karen Comeaux, alleging that they were
liable under the Eighth Amendment for denying him timely access to a medical
specialist during his confinement in the East Baton Rouge Parish Prison
(EBRPP) and various facilities overseen by the Louisiana Department of
Safety and Corrections (DOC), which resulted in the late diagnosis and
treatment of his throat cancer and required him to undergo a laryngectomy.
He further alleged that Grimes and Ottesen, acting in their official capacities,
were responsible under Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978),
for establishing policies or practices that denied him access to constitutionally
adequate care. The district court granted the defendants’ motions to dismiss
pursuant to Federal Rule of Procedure 12(b)(6) for failure to state a claim on
the grounds that the allegations in Wilson’s second amended complaint failed
to state a plausible claim that any of the defendants were deliberately
indifferent to his serious medical needs or to defeat the defendants’ assertions
of qualified immunity. Wilson now appeals the dismissal of his claims and the
district court’s denial of his request to file a third amended complaint.
Our de novo review of Wilson’s second amended complaint, which was
prepared by counsel, confirms that the district court correctly concluded that
his factual allegations, taken as true, complain of the delay in providing access
to a medical specialist rather than the denial of medical care and, therefore,
effectively constitute only a disagreement with his medical treatment. See
Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993). Accordingly, Wilson’s
complaint failed to state a facially plausible claim that any defendant was
deliberately indifferent to a serious medical need. See Thomas v. Chevron
U.S.A., Inc., 832 F.3d 586, 590 (5th Cir. 2016); Alderson v. Concordia Par. Corr.
Facility, 848 F.3d 415, 421-22 (5th Cir. 2017); Gobert v. Caldwell, 463 F.3d 339,
345-46 (5th Cir. 2006). Further, the district court did not err in dismissing
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No. 18-30475
claims against Grimes and Ottesen in their individual capacities on the basis
of qualified immunity based on Wilson’s failure to adequately allege a
constitutional violation. See Pearson v. Callahan, 555 U.S. 223, 231 (2009).
Because Wilson failed to sufficiently allege that his constitutional rights were
violated while he was confined at the East Baton Rouge Parish Prison, his
official capacity claims against Grimes and Ottesen also were properly
dismissed. See Connick v. Thompson, 563 U.S. 51, 60 (2011); Zarnow v. City
of Wichita Falls, 614 F.3d 161, 166 (5th Cir. 2010). Because Wilson fails to
brief whether Singh, Young, and Comeaux were correctly dismissed on the
basis of qualified immunity, he has waived his challenge to that determination.
See Am. States Ins. Co. v. Bailey, 133 F.3d 363, 372 (5th Cir. 1998); Beasley v.
McCotter, 798 F.2d 116, 118 (5th Cir. 1986).
As the district court observed, Wilson’s two counseled complaints were
highly detailed. They also were prepared by counsel after Wilson obtained his
EBRPP and DOC medical records, and Wilson identifies no additional factual
allegations that would cure the pleading deficiencies in his second amended
complaint. Accordingly, the district court’s denial of Wilson’s request to file a
third amended complaint was not erroneous. See Brown v. Taylor, 911 F.3d
235, 247 (5th Cir. 2018); Thomas, 832 F.3d at 590.
AFFIRMED.
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