Fenlon v. Thomas ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
May 29, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-21044
Summary Calendar
ROBERT M. FENLON,
Plaintiff-Appellant,
versus
TOMMY THOMAS, Sheriff;
UNKNOWN DEPUTY SHERIFFS, 1 to 99;
JOHN DOES, 100-120,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CV-4271
Before GARWOOD, JOLLY and SMITH, Circuit Judges.
PER CURIAM:*
Robert M. Fenlon, Texas prisoner #01015511, appeals the
district court’s grant of summary judgment in favor of the
defendants, dismissing his 42 U.S.C. § 1983 complaint in which
Fenlon alleged that he was denied constitutionally adequate medical
care and is now blind in his right eye as a result.
*
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opinion should not be published and is not precedent except under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.
Fenlon first challenges the procedure followed by the district
court, arguing that the district court erred in granting summary
judgment in favor of Sheriff Thomas individually because Thomas
neither answered nor moved for summary judgment in his individual
capacity. District courts, however, “possess the power to enter
summary judgments sua sponte,” a power limited only “by the
requirement to provide prior notice.” Leatherman v. Tarrant county
Narcotics Intelligence and Coordination Unit, 28 F.3d 1388, 1397
(5th Cir. 1994) (citations omitted). The matters asserted and
contentions made in Thomas’s motion placed Fenlon on adequate
notice that he had to come forward with all of his evidence against
Thomas individually (as well as in his official capacity), and the
district court agreed with Fenlon that his suit against Thomas was
an “individual capacity” claim. Therefore, the district court’s
summary judgment was procedurally correct.
Second, Fenlon argues that the district court’s grant of
summary judgment was in error as Fenlon submitted competent summary
judgment evidence raising a genuine issue of material fact. “This
court reviews the grant of [a] summary judgment de novo, using the
same criteria used by the district court in the first instance.”
Fraire v. City of Arlington, 957 F.2d 1268, 1273 (5th Cir. 1992).
Contrary to Fenlon’s contentions, Thomas addressed in his motion
Fenlon’s claim that under prison policy, prisoners had to wait
sixty days or more in order to obtain eye care treatment, with no
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exception for urgent care. The affidavit of Bobby Davis attached
to Thomas’s motion specifically spoke to this issue. Moreover,
Fenlon’s assertion that his allegations present a “condition of
confinement” case is similarly without merit. Fenlon complained
that the prison’s medical staff ignored his urgent requests to see
the optometrist, and that the prison’s sixty-day backlog for
optometry appointments allegedly permitted the staff’s action and
omissions. Such allegations set forth an “episodic act or
omission” case as set forth in Scott v. Moore, 114 F.3d 51 (5th
Cir. 1997) (en banc). Moreover, and in any event, Fenlon fails to
demonstrate how his claim would meet the requirements for a valid
“condition of confinement” case.
Although the affidavit Fenlon submitted in opposition to
Thomas’s summary judgment motion was competent summary judgment
evidence under 28 U.S.C. § 1746, it did not create a genuine issue
of material fact as to Fenlon’s claims. Fenlon’s conclusional
allegations and unsubstantiated assertions regarding prison policy
are insufficient to establish a genuine issue of material fact.
See Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)
(en banc). The only evidence Fenlon has submitted in support of
his assertion that Thomas implemented an unconstitutional policy
denying inmates emergency eye care are the facts surrounding his
own case. Fenlon has adduced no evidence that other inmates were
denied emergency eye care “or that the sheriff was otherwise
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actually informed or consciously believed that the [prison’s
medical] policy would expose prisoners to substantial risk of
significantly unmet serious medical needs.” Thompkins v. Belt, 828
F.2d 298, 305 (5th Cir. 1987). Thus, assuming arguendo that Fenlon
did not receive constitutionally adequate medical care, Thomas
still “cannot be held liable on the theory that he implemented an
unconstitutional policy when the record below indicates no more
than that the system may have failed in the one particular instance
of [Fenlon’s eye] injury.” Id. (footnote omitted).
Based on the foregoing, we conclude that the district court
did not err in granting summary judgment, and its judgment is
AFFIRMED.
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