Johnson v. Cherian ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40332
Summary Calendar
BILLY RAYFORD JOHNSON,
Plaintiff-Appellant,
versus
FRANCIS CHERIAN; JUDY KENT, Director/Manager Health Services;
D. ELLIS, R.N.; J. SLAUGHTER, Physician Assistant; ROCHELLE
MCKINNEY, R.N., M.A., Step 2 Grievance Coordinator; CHASTAIN
EARNEST, Physician Assistant; ANN DARBY, R.N.-Director of
Nursing; LOU NELL HARMAN, Assistant Manager-Health Services;
L.A. MASTERS, D.O.-Acting Facility Medical Director; CHARLES
FRIZZELL, Administrative Tech IV; BONNIE S. MILLER,
Administrative Tech I Count Room,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:99-CV-107
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September 6, 2002
Before JOLLY, EMILIO M. GARZA, and PARKER, Circuit Judges.
PER CURIAM:*
Billy Rayford Johnson, Texas prisoner # 379586, appeals the
district court’s grant of summary judgment in favor of the
defendants on his 42 U.S.C. § 1983 claims. He argues that the
district court abused its discretion in refusing to strike 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that this opinion should not be published and is not precedent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.
No. 02-40332
-2-
affidavit of Dr. Glenda Adams and in denying appointment of
counsel; in granting summary judgment to the defendants; and in
delaying the initial screening of his complaint, allegedly in
contravention of 28 U.S.C. § 1915A.
We hold that the district court did not abuse its discretion
in denying the motions to strike and to appoint counsel. See St.
Romain v. Indus. Fabrication & Repair Serv., Inc., 203 F.3d 376,
380 (5th Cir.) (motion to strike), cert. denied, 531 U.S. 816
(2000); Castro Romero v. Becken, 256 F.3d 349, 353-54 (5th Cir.
2001) (appointment of counsel). We further note that the
district court was not required to review the denial of Johnson’s
nondispositive motion to strike de novo. See 28 U.S.C.
636(b)(1)(A); Parks v. Collins, 761 F.2d 1101, 1104 (5th Cir.
1985) (nondispositive motions reviewed for clear error).
We further hold that Johnson has failed to demonstrate any
error in granting summary judgment to the defendants. See, e.g.,
Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 912 (5th Cir. 1992)
(employing de novo review). Johnson’s claims against Defendants
J. Slaughter and Francis Cherian do not rise to the level of a
constitutional violation, as they are tantamount to a
disagreement over the type of the medical care provided. See
Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir. 1997).
Furthermore, Johnson’s conclusional argument that Defendant
Charles Frizzell, as chief of classification, must be afforded
some liability for Johnson’s work and housing reassignments is
No. 02-40332
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insufficient to defeat summary judgment and to establish that
Frizzell possessed the knowledge necessary impose liability. See
Farmer v. Brennan, 511 U.S. 825, 837 (1994) (defendant must
“know[] and disregard[] an excessive risk to inmate health or
safety”); Michaels v. Avitech, Inc., 202 F.3d 746, 754-55 (5th
Cir.) (conclusional allegations, speculation, and improbable
inferences are insufficient to defeat a summary judgment motion),
cert. denied, 531 U.S. 926 (2000).
We further find that the unrefuted evidence established that
Defendants Rochelle McKinney and Judy Kent were unauthorized to
expedite Johnson’s treatment and therefore could not be held
liable for a failure to do so. Johnson’s retaliation claim
against Kent is also rejected, as it is supported by nothing more
than a conclusional argument, which is insufficient to
demonstrate retaliatory motive. See Jones v. Greninger, 188 F.3d
322, 324-25 (5th Cir. 1999).
Finally, Johnson has neither alleged nor established any
prejudice suffered as a result of the district court’s alleged
delay in screening his complaint. Therefore, he is not entitled
to any relief on that claim.
AFFIRMED.