Drew v. Terry ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 19, 2003
Charles R. Fulbruge III
Clerk
No. 02-50605
Summary Calendar
JULIUS DREW, JR.,
Plaintiff-Appellant,
versus
HASSEL R. TERRY; ALTON DALE CASKEY;
DANIEL W. SCHMEDTHORST; WILLIAM SHAIA;
JAMES R. ELDRIDGE,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. W-00-CV-260
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Before DAVIS, JONES and STEWART, Circuit Judges.
PER CURIAM:*
Julius Drew, Jr., Texas prisoner #414669, appeals the
dismissal of his pro se, in forma pauperis (IFP) civil rights
complaint. In addition to arguing the merits of his civil rights
claims, Drew argues the district court erred in failing to appoint
him counsel; the district court erred in concluding that his
amended complaint replaced his original complaint; the district
*
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that this opinion should not be published and is not precedent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. 02-50605
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court erred in imposing monetary sanctions; the district court
erred in denying his non-dispositive motions without requiring a
response from the defendants and without a hearing; and the
appellees’ letter brief should be stricken.
The appellees have filed a motion to dismiss the appeal for
want of jurisdiction. We treat Drew’s “Motion for Time to Comply
with Court Order to Pay Sanction and Other Requirements Necessary
to Respond to the Granting of Defendants’ Summary Judgment and
Dismissal of Plaintiff’s Cause,” which clearly evinced Drew’s
intent to appeal, as a timely notice of appeal. See Stevens v.
Heard, 674 F.2d 322 (5th Cir. 1982). Appellees’ motion is
therefore DENIED.
The district court did not abuse its discretion in denying
Drew’s motion for appointment of counsel as his case did not
present exceptional circumstances. See Ulmer v. Chancellor, 691
F.2d 209, 212 (5th Cir. 1982). For the same reason, his motion to
this court to appoint counsel is DENIED. Drew’s motion to strike
appellees’ letter brief is also DENIED.
The district court implicitly granted Drew’s motion to amend
his complaint and, because the amended complaint did not refer to
and incorporate the original complaint, it considered the original
complaint abandoned. This finding was not erroneous. See King v.
Dolan, 31 F.3d 344, 346 (5th Cir. 1994). We further conclude that
Drew had ample notice of the imposition of monetary sanctions
against him for filing frivolous motions and that he had ample
No. 02-50605
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opportunity to explain why his filings were not frivolous. Any
error by the district court in its imposition of sanctions was
harmless. See FED. CIV. P. 61. The district court did not err in
denying Drew’s non-dispositive motions without requiring a response
from defendants or holding hearings.
With respect to the merits of his civil rights claims, we do
not consider Drew’s claims regarding William Shaia and Sergeant
Kilgore. His claims against Shaia were abandoned in his amended
complaint, and the district court did not allow Drew to add Kilgore
as a defendant to the suit. Drew’s conclusory claim that he was
denied medical treatment fails to establish a violation by the
defendants of a constitutional right and, thus, will not be
considered.
Drew argues that defendants Hassel R. Terry, Alton Dale
Caskey, James Eldridge and Daniel Schmedthorst, all officials or
employees of the Texas Department of Criminal Justice-Institutional
Division, acted with deliberate indifference by failing to protect
him from physical injuries he sustained as a result of an
altercation with another inmate. Prison officials have a duty
under the Eighth Amendment to protect inmates from violence at the
hands of other prisoners. Farmer v. Brennan, 511 U.S. 825, 833
(1994); see also Horton v. Cockrell, 70 F.3d 397, 400-02 (5th Cir.
1995). To establish a failure-to-protect claim, an inmate must
show that he was “incarcerated under conditions posing a
substantial risk of serious harm, and that the prison official’s
No. 02-50605
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state of mind [was] one of deliberate indifference to the
prisoner’s health or safety.” Horton, 70 F.3d at 401. A prison
official acts with deliberate indifference “only if he knows that
inmates face a substantial risk of serious harm and disregards that
risk by failing to take reasonable measures to abate it.” Farmer,
511 U.S. at 847.
Drew attempts to incorporate by reference his motion in
opposition to Schmedthorst’s summary judgment motion. This is not
permitted. See Perillo v. Johnson, 79 F.3d 441, 443 n.1 (5th Cir.
1996). After applying a de novo standard of review, we conclude
that the district court did not err in granting Schmedthorst’s
motion for summary judgment and in dismissing Drew’s claims against
Eldridge under 28 U.S.C. § 1915(e)(2)(B) as frivolous and for
failure to state a claim as Drew failed to show that either of
these defendants acted with deliberate indifference. See Melton v.
Teachers Ins. & Annuity Ass’n of Am., 114 F.3d 557, 559 (5th Cir.
1997); Black v. Warren, 134 F.3d 732, 734 (5th Cir. 1998); Farmer,
511 U.S. at 847; Jackson v. Cain, 864 F.2d 1235, 1251-52 (5th Cir.
1989).
Drew does not challenge on appeal the district court’s
conclusion that his claims against Terry and Caskey in their
official capacities were barred by the Eleventh Amendment. Issues
that are not argued on appeal are deemed abandoned. Brinkmann v.
Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987).
No. 02-50605
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In conclusion, the appellees’ motion to dismiss the appeal for
lack of jurisdiction and Drew’s motions for appointment of counsel
and to strike the appellees’ letter brief are DENIED. The district
court’s final judgment, granting Schmedthorst’s summary judgment
motion and dismissing Drew’s claims against Eldridge, Terry, and
Caskey as frivolous and for failure to state a claim under 28
U.S.C. § 1915(e)(2)(B), is AFFIRMED.
MOTIONS DENIED; AFFIRMED.