Landrum v. McKinney ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
June 8, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-11152
Summary Calendar
CHARLES LANDRUM,
Plaintiff-Appellant,
versus
RECHELLE MCKINNEY; ET AL.,
Defendants,
RECHELLE MCKINNEY; NORMA HARRISON, Garment Factory;
FNU PREWIT, Unit Infirmary; KAREN HORSELY, Unit Infirmary
Defendants-
Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:02-CV-86
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Before BARKSDALE, STEWART and CLEMENT, Circuit Judges.
PER CURIAM:*
Charles Landrum, Texas prisoner # 565417, appeals the grant of summary judgment for the
defendants and the dismissal of his 42 U.S.C. § 1983 complaint. In his complaint, Landrum asserted
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
that the defendants were deliberately indifferent to his medical needs following his exposure to
formaldehyde gas. The parties consented to proceed before a magistrate judge (MJ). The MJ found
that the claims asserted by Landrum did not rise to the level of deliberate indifference, granted the
defendants’ motion for summary judgment, and dismissed the complaint.
We first address whether the Texas Department of Criminal Justice-Institutional Division
(TDCJ-ID), which was originally named as a defendant, is a party to this appeal. Assuming arguendo
that Landrum’s notice of appeal did include the separate dismissal of TDCJ-ID, we note that he has
failed to address the basis for the dismissal of TDCJ-ID in his appellate briefs. Therefore, we decline
to consider any claims against TDCJ-ID. See Brinkmann v. Dallas County Deputy Sheriff Abner,
813 F.2d 744, 748 (5th Cir. 1987) (this court “will not raise and discuss legal issues that [the
appellant] has failed to assert”). Id.This court reviews the grant of a motion for summary judgment de novo. Guillory v. Domtar
Indus., Inc., 95 F.3d 1320, 1326 (5th Cir. 1996). Our review of the record indicates that, for all
defendants but one, the MJ did not err in determining that their actions did not rise to the level of
deliberate indifference. See Farmer v. Brennan, 511 U.S. 825, 837 (1994) (to show deliberate
indifference, official must know of and disregard risk to inmate); Mendoza v. Lynaugh, 989 F.2d 191,
195 (5th Cir. 1993) (delay in medical care must be due to deliberate indifference and result in
substantial harm); Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991) (unsuccessful treatment,
negligence, or medical malpractice are insufficient to show unconstitutional denial of medical care);
Hernandez v. Estelle, 788 F.2d 1154, 1158 (5th Cir. 1986) (failure to follow prison regulations is not
a constitutional violation).
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However, we conclude that the MJ erred by granting defendant Harrison’s motion for
summary judgment. Landrum’s complaint, which he declared under penalty of perjury to be true and
correct, generally alleges that he timely informed Harrison of his adverse reactions to the
formaldehyde gas, but Harrison refused his requests for job change or protective equipment. See 28
U.S.C. § 1746; Hart v. Hairston, 343 F.3d 762, 764 n.1 (5th Cir. 2003) (declaration under penalty
of perjury is competent summary judgment evidence). In response, Harrison relies on her own
unsigned affidavit and points out that several of Landrum’s assertions lack independent support in
the record. Based on this record, we conclude that Landrum has demonstrated a genuine issue of
material fact sufficient to defeat Harrison’s motion for summary judgment. See FED. R. CIV. P. 56(c).
As Landrum has not alleged that Harrison was personally involved in his October 2001 reassignment
to the garment factory, we affirm the grant of summary judgment as to that claim. See Thompson v.
Steele, 709 F.2d 381, 382 (5th Cir. 1983) (“Personal involvement is an essential element of a civil
rights cause of action.”). We also conclude that Landrum’s grievances were sufficient to exhaust his
claims against Harrison.
Therefore, with the exception of Landrum’s claim regarding his October reassignment to the
garment factory, we vacate the MJ’s grant of summary judgment in favor of Harrison and remand for
further proceedings. We affirm the grant of summary judgment for the remaining defendants.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.
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