Branum v. Chambless , 250 F. App'x 99 ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 8, 2007
No. 05-20920
Summary Calendar Charles R. Fulbruge III
Clerk
ALFRED LEE BRANUM
Plaintiff-Appellant
v.
ALAN CHAMBLESS; STEVE KARAKOS; RUTH HEARNE; KELLI WARD;
WILLIAM FUQUA; ET AL
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:02-CV-4559
Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Alfred Lee Branum, Texas prisoner # 286354, brought
the present civil action pursuant to 42 U.S.C. § 1983. He appeals the district
court’s grant of summary judgment to all defendants. We affirm.
Branum contends that the district court erred in granting summary
judgment to the defendants on his claims that particular defendants were
deliberately indifferent to the substantial risk of serious harm posed to him by
the bench in the shower for the handicapped in Dorm 14 at the Jester III unit
*
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should not be published and is not precedent except under the limited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.
No. 05-20920
of the Texas Department of Criminal Justice, Correctional Institutions Division
(TDCJ-CID). 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).
Branum asserts that the defendants should have known of the safety risk
posed by the design of the shower bench and were possibly negligent, but he
failed to produce any evidence that the defendants had actual knowledge of any
risk of serious harm. As to prevail, Branum must prove that the defendants had
such knowledge, the district court did not err by granting the motion for
summary judgment on these claims. See Adames v. Perez, 331 F.3d 508, 514 (5th
Cir. 2003).
Branum contends that the district court erred in granting summary
judgment to the defendants on his claims based on deliberate indifference to
serious medical needs relative to the use of latex catheters. He maintains that
the defendants’ expert’s affidavit should not have been considered by the district
court, because the expert was not a urology specialist. He also seeks a
preliminary injunction from this court to require the defendants to provide him
with non-latex catheters in the future.
The district court properly considered the affidavit of the Defendant’s
expert, as an expert medical witness need not be a specialist for his opinions to
be considered. See Peteet v. Dow Chemical Co., 868 F.2d 1428, 1431-32 (5th Cir.
1989). The evidence produced by Branum shows only that medical professionals
have differing opinions on the appropriate course of treatment for him. Absence
of unanimity is not sufficient to show deliberate indifference to serious medical
needs. See Stewart v. Murphy, 174 F.3d 530, 535 (5th Cir. 1999).
The district court did not err in granting the motion for summary
judgment on Branum’s claims relating to the latex catheters. As Branum cannot
show a likelihood of success on the merits of this issue, he is not entitled to a
preliminary injunction. See Women’s Med. Ctr. v. Bell, 248 F.3d 411, 419 n.15
(5th Cir. 2001).
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No. 05-20920
Branum maintains that the district court erred by granting summary
judgment to the defendants on the remainder of his claims based for deliberate
indifference to his serious medical needs. He specifically contends that the
defendants demonstrated deliberate indifference by placing him in a segregated
cell that was not wheelchair-accessible.
The evidence produced by Branum showed, at most, that he did not receive
treatment as frequently as he wanted and that some of his treatment may have
been negligently given. This is not sufficient to create a genuine issue of
material fact for trial on deliberate indifference. See Varnado v. Lynaugh, 920
F.2d 320, 321 (5th Cir. 1991); Domino v. Texas Dep’t of Criminal Justice, 239
F.3d 752, 756 (5th Cir. 2001). It was at the initial screening stage of the case
that the district court dismissed as frivolous Branum’s claim regarding his
segregation cell, not at the summary judgment stage. As Branum had not
alleged any specific reasons why the segregation cell caused a substantial risk
to his safety or health, the district court did not abuse its discretion in
dismissing this claim as legally frivolous. See Arnaud v. Odom, 870 F.2d 304,
307 (5th Cir. 1989) (holding conclusional allegations insufficient to state a claim
under § 1983).
Branum insists that the defendants were not entitled to qualified
immunity or Eleventh Amendment immunity. As the district court did not base
its ruling on either of those grounds, these arguments are moot.
Branum asserts that the district court abused its discretion when it denied
his requests for full discovery disclosures from the defendants. He maintains
that the district court violated his due process rights by granting summary
judgment without first requiring full disclosures, implicitly challenging the
district court’s denial of his FED. R. CIV. P. 56(f) motion.
The discovery materials that Branum sought were (1) a TDCJ-CID policy
regarding safety and the duties of some of the defendants, and (2) his medical
records from January 2003 forward. None of the evidence for which Branum
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No. 05-20920
sought discovery would have created a genuine issue of material fact for trial.
Accordingly, Branum has not shown that the district court abused its discretion
by denying his discovery requests or his FED. R. CIV. P. 56(f) motion. See Moore
v. Willis Indep. Sch. Dist., 233 F.3d 871, 876 (5th Cir. 2000); Washington v.
Allstate Ins. Co., 901 F.2d 1281, 1285 (5th Cir. 1990). Branum’s further
argument that the district court abused its discretion in denying most of his
motions and granting all motions of the defendants does not identify a specific
error of the district court and is without merit. See Brinkmann v. Dallas County
Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
Branum asserts that the district court erred by dismissing some of his
claims for failure to exhaust administrative remedies. For the first time on
appeal, he insists that some of the defendants were medical professionals
employed by the University of Texas Medical Branch (UTMB), not the TDCJ-
CID, and that he had no administrative remedies that he could exhaust against
them. He additionally advances that he did exhaust his administrative remedies
regarding all of his claims.
As Branum did not contend that he had no administrative remedies to
exhaust against some of the defendants below, we review this issue for plain
error only. See Tilmon v. Prator, 368 F.3d 521, 524 (5th Cir. 2004). This issue
involves factual questions that could have been resolved if Branum had raised
the issue in the district court as, for example, which entity employed which of
the defendants and whether Branum had administrative remedies that he might
exhaust against UTMB employees. Thus, any error committed by the district
court on this issue cannot have been plain. See Robertson v. Plano City of Texas,
70 F.3d 21, 23 (5th Cir. 1995).
Branum did exhaust his administrative remedies regarding one claim
dismissed by the district court, i.e., his claim that S. Levy, a nurse at the Pack
I unit of the TDCJ-CID, refused to provide him with an egg crate mattress for
his back. Branum raised the same claim against Dr. Luke Scamardo, and the
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No. 05-20920
district court granted summary judgment on that claim. As there was no
meaningful difference between Branum’s claims against Levy and Dr. Scamardo
on this point, the dismissal of the claim against Levy was harmless. Branum
conceded in the district court that he did not exhaust his administrative
remedies regarding most of the remaining claims dismissed by the district court,
and the record confirms that he did not exhaust his administrative remedies
regarding any of the remaining claims dismissed by the district court.
Accordingly, Branum has not shown that the district court reversibly erred by
dismissing claims for failure to exhaust administrative remedies. See 42 U.S.C.
§ 1997e(a).
Branum asserts that the magistrate judge and district court violated his
due process rights when they denied two of his motions for leave to amend his
complaint. We review the denial of leave to amend for abuse of discretion. Ellis
v. Liberty Life Assurance Co., 394 F.3d 262, 268 (5th Cir. 2004).
The first motion to amend, which was denied by the magistrate judge, was
denied early in the proceedings, and Branum was allowed to assert the claims
raised in that proposed amendment in later amendments to his complaint.
Therefore, any error in the initial denial was harmless. In the second motion for
leave to amend that was denied, Branum sought to revive claims dismissed by
the district court on initial review. Branum filed this motion after the
defendants had filed their motion for summary judgment, approximately eight
months after the dismissal of the claims he sought to revive. Under these
circumstances, the district court did not abuse its discretion in denying Branum
leave to amend. See Overseas Inn S.A. P.A. v. United States, 911 F.2d 1146,
1150-51 (5th Cir. 1990).
Branum advances that the magistrate judge and district court abused
their discretion by denying his motions for appointment of counsel. He also
seeks appointment of counsel on appeal.
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No. 05-20920
Even though Branum’s complaint asserted numerous claims against many
defendants, the case concerns matters that happened to Branum personally.
The record clearly demonstrates Branum’s ability to present his case. As such,
neither the magistrate judge nor the district court abused their discretion in
denying Branum’s motions for appointment of counsel. See Cupit v. Jones, 835
F.2d 82, 86 (5th Cir. 1987). As Branum has not demonstrated exceptional
circumstances or that appointment of counsel would substantially assist the
resolution of this appeal, we deny his motion for appointment of counsel on
appeal. See Santana v. Chandler, 961 F.2d 514, 515-16 (5th Cir. 1992).
AFFIRMED; MOTION FOR PRELIMINARY INJUNCTION DENIED;
MOTION FOR APPOINTMENT OF COUNSEL DENIED.
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