Tasby v. Cain , 86 F. App'x 745 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS February 11, 2004
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 03-30334
Summary Calendar
VIDALE J. TASBY,
Plaintiff-Appellant,
versus
BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY;
DONALD BARR; DOUG DURETT; BILLY ORR; RANDY RITCHEL;
CAROL DUTHU; DAVE ANKERBAND; EDMUNDO GUITERREZ;
DAVID JONES; RICHARD L. STADLER; ROBERT RACHEL;
CLARENCE PARKER; RANDOLPH BEAUBOEUF; JOSEPH TURNER,
Defendants-Appellees.
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 00-CV-577
Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.
PER CURIAM:*
Vidale G. Tasby, Louisiana prisoner # 330329, appeals the
district court’s grant of summary judgment in favor of the
defendants on his 42 U.S.C. § 1983 action challenging his placement
in behind-the-back restraints (back restraints). We affirm.
Tasby argues first that the defendants placed him in back
*
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this opinion should not be published and is not precedent except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.
restraints after disciplinary convictions without notice or a
hearing in violation of the Due Process Clause. He has not shown,
however, that any punishment arising from the use of these back
restraints constituted an “atypical and significant hardship on
[him] in relation to the ordinary incidents of prison life.”1 The
record indicates that Tasby had to wear back restraints for only
short periods of time when he was outside of his cell.
Tasby next asserts that his placement in the back restraints
constituted deliberate indifference to his serious medical needs.
He claims that the back restraints caused him to break out in a
rash, that they prevented him from using his inhaler, that they
prevented him from breaking his fall with his hands when he fell,
and that they caused injury to his shoulders and back. His
assertion that he suffered a rash as a result of the back
restraints, however, does not establish that he suffered “serious
harm.”2 Tasby likewise has not established that he suffered any
harm, let alone “serious harm,” based on an alleged inability to
use an inhaler to treat his hay fever while in the back
restraints.3 His contention that he fell while suffering an
allergic reaction and could not reach his inhaler is raised for the
1
Sandin v. Conner, 515 U.S. 472, 484 (1995) (internal
citations omitted).
2
Farmer v. Brennan, 511 U.S. 825, 847 (1994).
3
Farmer, 511 U.S. at 847.
2
first time on appeal and will not be considered.4
Tasby’s arguments concerning his fall similarly fail to
provide any basis for relief. He has not shown that the defendants
were aware of a “substantial risk of serious harm” surrounding the
fall that he suffered,5 and he received treatment after he slipped
and fell. His disagreement with the treatment he received is
insufficient to warrant relief under 42 U.S.C. § 1983.6 Finally,
Tasby’s allegations that the back restraints caused calcification
in his shoulder are conclusional, and thus are also insufficient to
warrant federal relief in light of the medical evidence presented
by the defendants.7
Tasby does not challenge on appeal the district court’s
dismissal of his claims against the defendants in their official
capacities, the dismissal of one defendant for lack of service of
process, the finding that the directive authorizing back restraints
was constitutional, and the dismissal without prejudice of his
state-law claims. Although Tasby lists as an appellate issue the
assertion that the district court erred in allowing the defendants
to file a second motion for summary judgment, he does not present
4
Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th
Cir. 1999).
5
Farmer, 511 U.S. at 847.
6
Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991).
7
See Michaels v. Avitech, Inc., 202 F.3d 746, 754-55 (5th Cir.
2000).
3
any argument on this allegation. These claims are therefore deemed
abandoned.8
The judgment of the district court is AFFIRMED.
8
See Yohey v. Collins, 985 F.3d 222, 224-25 (5th Cir. 1993);
Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.3d 744, 748
(5th Cir. 1987).
4