Harris v. Ashby ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-11110
Summary Calendar
KENNETH L. HARRIS,
Plaintiff-Appellant,
versus
ANNE ASHBY, Judge, In Her Official Capacity and
Individually; JIM BOWLES, In His Official Capacity and
Individually; H.K. WASOFF, JR., In His Official Capacity and
Individually; JAMES D. BLUME, In His Official Capacity and
Individually; J. MARK HANSEN, In His Official Capacity and
Individually; VIAL HAMILTON KOCH & KNOX, L.L.P.; KENNETH A.
HERRIDGE, In His Official Capacity and Individually; DANA L.
RYAN, In Her Official Capacity and Individually; RICHARD
RAMIREZ, In His Official Capacity and Individually; JACK M.
KUYKENDALL, In His Official Capacity and Individually;
JENNIFER G. JACKSON, In Her Official Capacity and Individually;
LOCKE LIDDELL & SAPP, L.L.P.; BARTON L. RIDLEY, In His Official
Capacity and Individually; TOUCHSTONE BERNAYS JOHNSTON BEALL
& SMITH, L.L.P.; CARY W. SCHULMAN, In His Official Capacity
and Individually; SAMUEL J. POLAK, In His Official Capacity
and Individually; PAYNE & BLANDCHARD, L.L.P.; TEXAS COMMISSION
ON JAIL STANDARDS; BARBARA GEDDIS VAN DUYNE, In Her Official
Capacity and Individually; B.H. MCCORKLE, M.D., In His Official
Capacity and Individually; MID-STATES COMMISSARY, INC.;
DOUGLAS D. HALOFTIS, In His Official Capacity and Individually;
KELLI E. WELCH, In His Official Capacity and Individually;
GARDERE & WYNNE; UNAUTHORIZED PRACTICE OF LAW COMMITTEE,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:00-CV-1409-M
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July 8, 2002
No. 01-11110
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Before DeMOSS, PARKER, and DENNIS, Circuit Judges.
PER CURIAM:*
Kenneth L. Harris appeals the district court’s pretrial
dismissal of his lawsuit alleging civil rights claims and claims
under the Racketeer Influenced and Corrupt Organizations Act
(“RICO”). For the following reasons, we AFFIRM the district
court’s judgment.
Harris has failed to brief any challenge to the district
court’s dismissal of his claims for declaratory and injunctive
relief, his RICO claims, his civil rights claims under 42 U.S.C. §§
1981 and 1985(2) & (3), his claims against Texas Commission on Jail
Standards, his civil rights claims under 42 U.S.C. § 1983 against
Sheriff Jim Bowles and Dr. B.H. McCorkle in their official
capacities, his 42 U.S.C. § 1983 claims against Sheriff Bowles and
Dr. McCorkle individually based on involuntary servitude and
unsanitary jail conditions, his 42 U.S.C. § 1983 claims against
Sheriff Bowles individually for denial of medical care, and his 42
U.S.C. § 1983 claims against Dr. McCorkle individually for exposure
to environmental tobacco smoke and denial of good-time credit.
Harris has therefore abandoned these claims on appeal. See Yohey
v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
*
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. 01-11110
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Harris has failed to adequately brief his 42 U.S.C. § 1983
conspiracy claims against Mid-States Commissary, Inc. and the 16
private attorneys and law firms. Harris has not identified any
actual agreement between those private defendants and the public
defendants to commit an illegal act, explained how those
defendants’ actions constitutionally injured him, or cited any
legal authority supporting his claims against those defendants. See
Cinel v. Connick, 15 F.3d 1338, 1343 (5th Cir. 1994) (holding that
a conspiracy claim under 42 U.S.C. § 1983 requires an agreement
between private and public defendants to commit an illegal act and
an actual deprivation of constitutional rights). Harris has
therefore abandoned his challenge to the dismissal of those claims.
See Yohey, 985 F.2d at 224-25.
The district court did not err in dismissing Harris’ 42 U.S.C.
§ 1983 claim against Judge Anne Ashby on the basis of judicial
immunity. Because Harris has failed to show that Judge Ashby’s
challenged acts were non-judicial in nature and were taken in the
complete absence of all jurisdiction, Judge Ashby is entitled to
absolute judicial immunity. See Malina v. Gonzales, 994 F.2d 1121,
1124 (5th Cir. 1993); Stump v. Sparkman, 435 U.S. 349, 359-60, 362
(1978) (holding that since judge’s court was one of general
jurisdiction, neither his procedural errors nor the fact that his
judicial act was not specifically authorized by statute deprived
him of judicial immunity).
No. 01-11110
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The district court also did not err in dismissing Harris’ 42
U.S.C. § 1983 claim against the Unauthorized Practice of Law
Committee (“UPLC”) and the UPLC attorneys on immunity grounds. The
Eleventh Amendment divests federal courts of jurisdiction to
entertain official-capacity suits against the UPLC, which is a
state agency, and the UPLC attorneys, who are state employees. See
Green v. State Bar of Texas, 27 F.3d 1083, 1087-88 (5th Cir. 1994).
Furthermore, the UPLC attorneys are entitled to absolute
prosecutorial immunity with respect to Harris’ claims against them
individually for actions taken in their capacities as prosecutors
for the UPLC. Id. at 1088.
Harris challenges the magistrate judge’s grant of Sheriff
Bowles’ and Dr. McCorkle’s motion for a protective order staying
discovery. Because Harris did not appeal the magistrate judge’s
ruling to the district court, this court lacks jurisdiction to
review it. See Colburn v. Bunge Towing, Inc., 883 F.2d 372, 379
(5th Cir. 1989).
The district court did not err in granting summary judgment on
Harris’ 42 U.S.C. § 1983 claim against Dr. McCorkle individually
for denial of medical care. Harris has failed to assert that Dr.
McCorkle’s alleged delay in providing medical treatment for his
high blood pressure caused him substantial harm, which is necessary
to establish a constitutional violation. See Mendoza v. Lynaugh,
989 F.2d 191, 195 (5th Cir. 1993). With respect to his claim that
Dr. McCorkle denied him medical care for his conditions caused by
No. 01-11110
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environmental tobacco smoke, Harris has provided only conclusional
allegations; Harris has failed to explain how Dr. McCorkle denied
him medical care for the conditions or even to identify the
conditions themselves. See Koch v. Puckett, 907 F.2d 524, 530 (5th
Cir. 1990) (holding that “[m]ere conclus[ional] allegations on a
critical issue are insufficient to raise a constitutional issue").
Finally, Harris has not shown that Dr. McCorkle was liable for any
violations of law by nurses at the jail, as vicarious liability is
not applicable in this context and Harris has not asserted that Dr.
McCorkle failed to train or supervise the nurses. See Alton v.
Texas A&M Univ., 168 F.3d 196, 200 (5th Cir. 1999); Smith v.
Brenoettsy, 158 F.3d 908, 911 (5th Cir. 1998).
The district court did not err in granting summary judgment on
Harris’ 42 U.S.C. § 1983 claim against Sheriff Bowles individually
for involuntary exposure to environmental tobacco smoke. Harris
has not asserted facts establishing that he was exposed to
unreasonably high levels of environmental tobacco smoke, as is
necessary to allege a constitutional violation. See Richardson v.
Spurlock, 260 F.3d 495, 498 (5th Cir. 2001). Harris has not
identified either the level of smoke to which he was exposed or, as
noted above, the medical conditions he allegedly suffered as a
result of the exposure. Harris’ merely conclusional allegations
that he was harmed by exposure to environmental tobacco smoke are
insufficient to allege a constitutional violation. See Koch, 907
F.2d at 530.
No. 01-11110
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The district court did not err in granting summary judgment on
Harris’ 42 U.S.C. § 1983 claim against Sheriff Bowles individually
for denial of good-time credit. Harris argues that he was denied
the benefit of the good-time credit rule applicable to criminal
sentences because his contempt case was improperly classified as
civil.
Even assuming that Harris’ contempt case was in fact criminal,
Harris has failed to establish that Sheriff Bowles intentionally
misclassified his criminal contempt case in order to adversely
affect Harris as a member of the group of prisoners serving
criminal contempt sentences. See McCleskey v. Kemp, 481 U.S. 279,
292 (1987) (holding that a discriminatory purpose to adversely
affect an identifiable group is necessary to establish an equal
protection violation). Harris in part asserts that Sheriff Bowles
should have known or could have determined that Harris’ case was
criminal, thus suggesting that Sheriff Bowles’ actions were merely
negligent. See Bowie v. Procunier, 808 F.2d 1142, 1143 (5th Cir.
1987) (holding that the Equal Protection Clause is not implicated
by negligence). To the extent that Harris charges purposeful
misclassification, his allegations are conclusional and thus
insufficient to establish a constitutional violation. See Koch,
907 F.2d at 530.
Finally, since all of Harris’ federal claims were properly
dismissed, the district court did not abuse its discretion in
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dismissing Harris’ pendant state law claims. See Rhyne v.
Henderson County, 973 F.2d 386, 395 (5th Cir. 1992).
AFFIRMED.