Campillo v. United States Penitentiary Beaumont, Texas , 203 F. App'x 555 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 11, 2006
Charles R. Fulbruge III
Clerk
No. 05-40626
Summary Calendar
ANDRES CAMPILLO,
Plaintiff-Appellant,
versus
UNITED STATES PENITENTIARY BEAUMONT TEXAS;
ERNEST CHANDLER, Warden; UNIDENTIFIED PARTY, John Doe 1-10;
MEDICAL STAFF,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
(1:03-CV-262)
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Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Andres Campillo, federal prisoner # 43410-
004, appeals the district court’s grant of summary judgment in
favor of defendant Ernest Chandler on Campillo’s civil rights
claims, dismissal of his civil rights1 claims against the unnamed
defendants, and dismissal of his claim brought under the Federal
Torts Claims Act (FTCA). As Campillo did not object to 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this opinion should not be published and is not precedent except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.
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Campillo’s two civil rights claims were brought pursuant
to Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971).
magistrate judge’s report, our review is limited to plain error.
See Highlands Ins. Co. v. National Union Fire Ins. Co., 27 F.3d
1027, 1032 (5th Cir. 1994).
Campillo’s two Bivens claims were brought against Chandler and
the unnamed defendants. The district court dismissed the claims
against the unnamed defendants for lack of service. Campillo has
not briefed any error with respect to this issue; it is therefore
abandoned. See Brinkmann v. Dallas County Deputy Sheriff Abner,
813 F.2d 744, 748 (5th Cir. 1987).
Campillo asserts that the district court erred when it granted
summary in favor of Chandler on the two Bivens claims, arguing that
Chandler implemented policies that were the moving force behind the
violation of his civil rights. The district court did not plainly
err in granting summary judgment for Chandler on Campillo’s claim
against him in his official capacity. Bivens actions may be
brought against defendants acting in their individual capacities
only. Affiliated Prof’l Home Health Care Agency v. Shalala, 164
F.3d 282, 286 (5th Cir. 1999). Neither did the district court err
in granting summary judgment against Campillo on his claim against
Chandler in his individual capacity. Campillo did not demonstrate
with the requisite specificity that Chandler implemented “a policy
that is ‘itself[] a repudiation of constitutional rights’ and ‘the
moving force of the constitutional violation.’” See Oliver v.
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Scott, 276 F.3d 736, 742 (5th Cir. 2002); see also Anderson v.
Pasadena Indep. School Dist., 184 F.3d 439, 443 (5th Cir. 1999).
Campillo also contends that the district court erred when it
dismissed his FTCA claim for lack of subject matter jurisdiction.
Relying on United States v. Muniz, 374 U.S. 150 (1963), Campillo
argues that the discretionary function exception does not apply to
his case because the defendants were negligent in protecting him
from attack by other prisoners, in contravention of their duty
under 18 U.S.C. § 4042. We agree with the other circuits that have
held that neither § 4042’s mandate to protect prisoners nor the
prohibition against cruel and unusual punishment defines a
non-discretionary course of action specific enough to render the
discretionary function exception inapplicable. See Montez ex rel.
Estate of Hearlson v. United States, 359 F.3d 392, 396 (6th Cir.
2004); Santana-Rosa v. United States, 335 F.3d 39, 41-45 (1st Cir.
2003); Cohen v. United States, 151 F.3d 1338, 1342-43 (11th Cir.
1998); Calderon v. United States, 123 F.3d 947, 950 (7th Cir.
1997). Campillo has pointed to no rule or regulation showing that
the prison guards or medical staff lacked discretion in handling
prisoner-on-prisoner attacks or medical treatment of prisoners.
AFFIRMED.
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