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Donald Ingle, Jr. v. Pam Pace ( 2018 )


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  •      Case: 18-40012      Document: 00514753509         Page: 1    Date Filed: 12/10/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-40012                        December 10, 2018
Summary Calendar
Lyle W. Cayce
Clerk
DONALD WAYNE INGLE, JR.,
Plaintiff-Appellant
v.
PAM PACE; BOBBY BURNS,
Defendants-Appellees
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:16-CV-1305
Before SMITH, WIENER, and WILLETT, Circuit Judges.
PER CURIAM: *
Donald W. Ingle, Jr., Texas prisoner # 769010, appeals the district
court’s dismissal with prejudice of his
    42 U.S.C. § 1983
     complaint against Pam
Pace and Bobby Burns, both of whom are University of Texas Medical Branch
employees. Ingle’s claim stems from his allegation that he was improperly
assessed a medical co-pay for his December 2015 visit to the prison medical
unit. The district court dismissed Ingle’s complaint after determining that 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 18-40012      Document: 00514753509        Page: 2    Date Filed: 12/10/2018
No. 18-40012
defendants were entitled to (1) summary judgment because Ingle’s claims were
frivolous under the Parratt/Hudson 1 doctrine; (2) qualified immunity; and (3)
Eleventh Amendment immunity to the extent that Ingle was suing them in
their official capacities.
On appeal, Ingle argues: (1) the district court erred by denying his
motion for appointment of counsel; (2) the defendants committed fraud or
misrepresented facts regarding his exhaustion of administrative remedies;
(3) the defendants were not entitled to qualified immunity; and (4) the
defendants were not entitled to Eleventh Amendment immunity. Because this
case did not involve exceptional circumstances, it was not an abuse of
discretion to deny Ingle’s motion for appointment of counsel. See Ulmer v.
Chancellor,
    691 F.2d 209
    , 212-13 (5th Cir. 1982). Moreover, our examination
of the record does not confirm that the defendants committed fraud or
misrepresented facts. In any event, the district court denied the defendants’
motion for summary judgment as to the exhaustion issue.
Through his failure to brief the issue, Ingle has waived any challenge to
the district court’s dismissal of his complaint on the ground that his claims
were frivolous because they were barred under the Parratt/Hudson doctrine.
See Yohey v. Collins,
    985 F.2d 222
    , 224-25 (5th Cir. 1993); Brinkmann v. Dallas
Cty. Deputy Sheriff Abner,
    813 F.2d 744
    , 748 (5th Cir. 1987). He thus cannot
show that he meets the first prong of the qualified-immunity analysis. See
Pearson v. Callahan,
    555 U.S. 223
    , 232 (2009). The district court therefore
correctly determined that the defendants were protected by qualified
immunity.
1  Hudson v. Palmer,
    468 U.S. 517
    , 533 (1984); Parratt v. Taylor,
    451 U.S. 527
    , 541
(1981), overruled in part by Daniels v. Williams,
    474 U.S. 327
     (1986).
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Case: 18-40012   Document: 00514753509    Page: 3   Date Filed: 12/10/2018
No. 18-40012
The district court also correctly held that Ingle’s claims were barred by
Eleventh Amendment immunity to the extent that he was suing the
defendants in their official capacities. See Will v. Michigan Dep’t of State
Police,
    491 U.S. 58
    , 71 (1989); James v. Gonzalez, 348 F. App’x 957, 959 (5th
Cir. 2009). Ingle’s argument to the contrary is not supported by the relevant
law.
According, the district court’s judgment is AFFIRMED.
3