Bowen v. Quarterman ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 4, 2009
No. 08-20547
Summary Calendar Charles R. Fulbruge III
Clerk
MELVIN ALAN BOWEN
Plaintiff-Appellant
v.
NATHANIEL QUARTERMAN; DIANA D KUKUA; GROVER W GOODWELL,
JR; GLENDON E SCHUMACHER; JASON CLIVES
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:06-CV-4056
Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Melvin Alan Bowen, Texas prisoner # 1125407, appeals the district court’s
dismissal of his Section 1983 lawsuit for failure to state a claim upon which
relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii). We AFFIRM.
We review the dismissal of Bowen’s claims de novo. See Harris v.
Hegmann, 198 F.3d 153, 156 (5th Cir. 1999). A suit may be dismissed for failure
to state a claim upon which relief may be granted if, assuming all well-pleaded
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-20547
facts are true, the plaintiff has not stated “enough facts to state a claim to relief
that is plausible on its face.” In re Katrina Canal Breaches Litig., 495 F.3d 191,
205 (5th Cir. 2007) (internal quotation marks and citation excluded), cert.
denied, 128 S. Ct. 1230, 1231 (2008).
For the first time on appeal, Bowen makes these allegations: that the
defendants violated the Texas Medical Liability and Insurance Improvement
Act; that even though inmates were told at safety meetings not to lift tables in
the dining hall by themselves, he was ordered to lift the tables by himself
because of a shortage of workers; and that one of the defendants ordered him to
lift 100-pound bags of potatoes after he injured his hand. As these claims were
not raised in the district court, these claims are not considered on appeal. See
Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999).
In addition to these improper new claims that we do not analyze, Bowen
argues that the district court erred by dismissing his claim of deliberate
indifference to his serious medical needs. The basis of his claim is that the
medical defendants did not provide proper medical care and that he was forced
to perform work that caused and then exacerbated an injury to his hand. Bowen
allegedly injured his hand when lowering a table. This injury is alleged to be
permanent. He speculates that if he had been treated by an orthopedic hand
specialist, his injury would not have become permanent.
Bowen’s allegations about his medical treatment establish that he was
examined by multiple doctors and physicians’ assistants and was treated for his
hand injury. Bowen himself states that he received seven days off from work,
and was restricted from lifting more than 50 pounds and from repetitive use of
his hands. Bowen also asserts that he was treated with steroids and painkillers.
Thus, Bowen acknowledges that attention was given to his injury.
Bowen did not allege any facts showing that the medical defendants knew
that he had a serious medical need and refused to treat that need. While Bowen
alleged that one physician’s assistant once refused to see him and that a second
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No. 08-20547
physician’s assistant refused to give him treatment that a doctor prescribed, in
both instances, Bowen was later treated by a doctor. Bowen does not allege that
he suffered any injury from any delay in treatment.
At most, Bowen disagreed with the medical treatment he received and
found the medical treatment to be ineffective. This is insufficient to state a
viable claim for deliberate indifference to serious medical needs. See Domino v.
Tex. Dep’t of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001).
Bowen also claims that his hand injury occurred when he was ordered to
lift heavy tables. However, he did not allege that he had any injury or physical
limitations when he lifted the heavy tables or that the defendants had
knowledge that lifting the tables could cause him injury. While Bowen alleged
that he was required to work in the fields and in the kitchen at the Stringfellow
Unit in violation of his repetitive use of hands restriction, he did not allege that
this work was required by any of the named defendants or that he suffered any
injury from performing the work.
Bowen’s allegations might support that the defendants negligently
assigned him to perform work that caused or exacerbated his injuries. That kind
of allegation does not state a viable claim for deliberate indifference. See
Jackson v. Cain, 864 F.2d 1235, 1246 (5th Cir. 1989).
Bowen has not shown that the district court erred by dismissing his
deliberate indifference to serious medical needs claims.
In addition to the medical-related claims, Bowen argues that the district
court erred by dismissing his challenges to his work assignments. He maintains
that the defendants forced him to perform labor in violation of the Thirteenth
Amendment. We reject that argument, because requiring an inmate to perform
labor is not involuntary servitude under the Amendment. Loving v. Johnson,
455 F.3d 562, 563 (5th Cir. 2006). The district court did not err by dismissing
Bowen’s claims challenging his work assignments. See Jackson, 864 F.2d at
1245.
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No. 08-20547
Next, Bowen argues that the district court erred by dismissing his
challenges to the disciplinary proceedings brought against him. Bowen asserts
that inmates can bring due process challenges to disciplinary proceedings and
parole procedures in Section 1983 actions. He argues that the disciplinary
proceedings brought against him were improper. The district court dismissed
these challenges on the ground that the punishments Bowen received did not
affect a liberty interest protected by the Due Process Clause. As Bowen has not
addressed the district court’s rationale for dismissing these claims, he has
waived the challenge to the dismissal of these claims. See Brinkmann v. Dallas
County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
Bowen’s claims regarding a conspiracy were dismissed. Bowen asserts
that the facts are complex, but he finds it within “reason and understandable
that all parties were part of a conspiracy.” Bowen contends that the district
court misconstrued the factual allegations he set forth, but he does not identify
the allegations that were misconstrued. Bowen does not point us to any facts
that tend to show an agreement between the defendants. He merely argues that
it is reasonable to believe that the defendants were part of a conspiracy.
Accordingly, Bowen’s allegations are insufficient to state a viable conspiracy
claim. See Hale v. Harney, 786 F.2d 688, 690 (5th Cir. 1986).
Bowen additionally notes that he raised claims under the Americans with
Disabilities Act (ADA) in the district court, but he does not explain why he was
entitled to relief under the ADA. Because Bowen has failed to provide citations
to the record, authorities, or a coherent argument in support of these claims, he
has waived these claims. See Fed. R. App. P. 28(a)(9); United States v. Gourley,
168 F.3d 165, 172 n.11 (5th Cir. 1999); Yohey v. Collins, 985 F.2d 222, 224-25
(5th Cir. 1993).
Besides these specific claims on the merits, Bowen also argues that the
district court abused its discretion by refusing to appoint counsel or,
alternatively, appoint a special master. Bowen has filed two motions for
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No. 08-20547
appointment of appellate counsel. Exceptional circumstances are necessary to
justify the appointment of counsel or a special master in a civil rights action. See
Sierra Club v. Clifford, 257 F.3d 444, 446 (5th Cir. 2001); Ulmer v. Chancellor,
691 F.2d 209, 212 (5th Cir. 1982). He has not shown that such circumstances
exist. The district court consequently committed no clear abuse of discretion by
denying his motions for appointment of counsel. See Cupit v. Jones, 835 F.2d 82,
86 (5th Cir. 1987). His motions for appointment of counsel on appeal are denied.
See Santana v. Chandler, 961 F.2d 514, 515-16 (5th Cir. 1992).
While this appeal was pending, Bowen accumulated his second and third
strikes pursuant to 28 U.S.C. § 1915(g). Bowen v. Stewart, 294 F. App’x 987, 989
(5th Cir. 2008). Bowen is once again warned that he is barred from proceeding
in forma pauperis pursuant to Section 1915 while he is incarcerated or detained
in any facility unless he is under imminent danger of serious physical injury.
See 28 U.S.C. § 1915(g).
The district court’s dismissal is AFFIRMED. Bowen’s motions for
appointment of counsel are DENIED.
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