Bejaran v. Cruz ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 22, 2003
Charles R. Fulbruge III
Clerk
No. 02-41306
Summary Calendar
ANTONIO BEJARAN, JR.,
Plaintiff-Appellant,
versus
JOHN CRUZ; CO-WORKER OF JOHN CRUZ; MRS. OSHA, Cameron County
Medical Department Nurse; CAMERON COUNTY TEXAS, FOR CAMERON
COUNTY SHERIFF DEPARTMENT,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-01-CV-75
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Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Antonio Bejaran, Jr., Texas prisoner # 898233, appeals the
magistrate judge’s dismissal of his 42 U.S.C. § 1983 complaint
alleging excessive use of force during arrest and failure to
provide medical attention. Although the record does not contain
written consent by the defendants to proceed before the
magistrate judge as required by 28 U.S.C. § 636(c), we may infer
*
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that this opinion should not be published and is not precedent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. 02-40306
-2-
their consent from the record as a whole. See Roell v. Withrow,
123 S. Ct. 1696, 1701-04 (2003).
In light of the violent nature of the crime for which
Bejaran was being arrested (aggravated assault with a deadly
weapon), as well as Bejaran’s guilty-plea conviction for felony
assault of Officer Cruz during the arrest at issue, the facts
pleaded in Bejaran’s complaint failed to show that the force used
was clearly excessive to the need and the excessiveness of the
force was objectively unreasonable. See Ikerd v. Blair, 101 F.3d
430, 433-34 (5th Cir. 1996). The district court did not err in
dismissing Bejaran’s excessive-force claim.
Bejaran’s admission in his complaint that the prison medical
staff took x-rays of his back and that Mrs. Osha gave him
“generic,” “mild medications” refute his assertion of deliberate
indifference to his medical needs. See Estelle v. Gamble, 429
U.S. 97, 106 (1976). Moreover, Bejaran has not shown that he
faced a substantial risk of harm or that prison officials failed
to take reasonable measures to abate it. See Farmer v. Brennan,
511 U.S. 825, 847 (1994); Reeves v. Collins, 27 F.3d 174, 176
(5th Cir. 1994). Thus, the district court did not err in
dismissing Bejaran’s claim that he was denied medical attention
at the jail.
Bejaran’s motions for appointment of counsel and for summary
judgment are hereby DENIED. His motion for change of venue is
also DENIED.
No. 02-40306
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AFFIRMED; MOTIONS DENIED.