Alexander v. Choate ( 1998 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-40875
Summary Calendar
BARRY ALEXANDER,
Plaintiff-Appellant,
versus
MARY CHOATE, Sheriff;
BOWIE COUNTY CORRECTIONAL CENTER;
CORPORAL HOUFF,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Texas
(5:96-CV-56)
April 7, 1998
Before JOHNSON, SMITH, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Barry Alexander, formerly incarcerated at Bowie County
Correctional Center, appeals the dismissal of his civil rights
complaint. Alexander contends that jail guards violated his
constitutional rights by using force against him on February 25,
1994. Specifically, he contends for the first time on appeal that
(1)prison policy was violated because his injuries amounted to
punishment and he was not given a hearing before his injuries were
*
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this opinion should not be published and is not precedent except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.
inflicted, (2)his right to due process was violated, and (3)his
right to equal protection was violated.
As an initial matter, we must determine the proper standard of
review. In this circuit,
a party’s failure to file written objections to the
proposed findings, conclusions, and recommendation
in a magistrate judge’s report and recommendation
within 10 days after being served with a copy shall
bar that party, except on grounds of plain error,
from attacking on appeal the unobjected-to proposed
factual findings and legal conclusions accepted by
the district court, provided that the party has
been served with notice that such consequences will
result from a failure to object.
Douglass v. United Servs. Auto Ass’n., 79 F.3d 1415, 1428-29 (5th
Cir. 1996)(en banc). Though the magistrate judge warned Alexander
of these consequences, Alexander did not file any objections to the
magistrate’s report. For that reason, we review the judgment of
the district court for plain error.1
After a careful review of the record and the controlling
authorities, we hold that the district court did not plainly err in
dismissing Alexander’s claims against the defendants named in his
complaint. Alexander’s allegations against Choate and Houff are
1
Plain error review gives appellate courts discretion to
correct forfeited errors only when an appellant shows that there is
an error, the error is clear or obvious, and the error affects his
substantial rights. Douglass, 79 F.3d at 1424 (citing United States
v. Calverly, 37 F.3d 160, 162-64 (5th Cir. 1994)(en banc)). Even
if these factors are established, this court may decline to
exercise its discretion and correct the error unless the error
“seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” United States v. McDowell, 109 F.3d 214,
216 (5th Cir. 1997).
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insufficient to establish personal participation in Alexander’s
injuries or to establish that either was responsible for the
practices Alexander protests. See Thompkins v. Belt, 828 F.2d 298,
303-04 (5th Cir. 1987). Similarly, Alexander’s allegations against
BCCC are also insufficient. Alexander contends that BCCC is liable
for his injuries because he was injured inside its facility. Such
allegations fail to state a basis for municipal liability. See
Colle v. Brazos County, Texas, 981 F.2d 237, 244 (5th Cir. 1993).
After a careful review of the record and the controlling
authorities, we also find that the district court did not commit
plain error with regard to the possible liability of Officer
Smallwood and the other guards involved in the incident. See
Highlands Ins. Co. v. National Union Fire Ins. Co., 27 F.3d 1027,
1032 (5th Cir. 1994), cert. denied, 513 U.S. 1112 (1995).
Finally, Alexander contends, for the first time on appeal,
that prison officials violated prison policies because he was not
given a hearing before he was injured in violation of his due
process and equal protection rights. However, the failure of
prison officials to follow prison rules and regulations does not,
without more, give rise to a constitutional violation. Myers v.
Klevenhagen, 97 F.3d 91, 94 (5th Cir. 1996). Accordingly, the
district court did not plainly err in dismissing his due process
claim. Alexander offered no factual or legal support for his
sweeping assertion that his rights under the Equal Protection
Clause were violated. For that reason, the district court did not
3
plainly err in dismissing his equal protection claim. See Brinkman
v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987).
AFFIRMED.
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