Roderick Johnson v. John Doe , 582 F. App'x 512 ( 2014 )

Case: 13-20475 Document: 00512789676 Page: 1 Date Filed: 10/01/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-20475 FILED
Summary Calendar October 1, 2014
Lyle W. Cayce
Clerk
RODERICK KEITH JOHNSON,
Plaintiff-Appellant
v.
JOHN DOE; BRAD LIVINGSTON, Executive Director of Texas Department of
Criminal Justice; RICK THALER, Director of Correctional Institutions
Division; Senior Warden RICHARD HERRERA; LANETTE LITHICUM,
Director of Health Services Division,
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:12-CV-2728
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
Roderick Keith Johnson, Texas prisoner # 1455959, appeals the district
court’s summary judgment dismissal of his 42 U.S.C. § 1983 action filed
against various officials of the Texas Department of Criminal Justice (TDCJ),
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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No. 13-20475
alleging that the defendants 1 violated his constitutional rights while he was
housed in administrative segregation as a protective custody inmate.
We review the grant of summary judgment de novo, applying the same
standards as the district court. Carnaby v. City of Houston, 636 F.3d 183, 187
(5th Cir. 2011). Summary judgment is appropriate where the “movant shows
that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). In conducting
our review, we view the evidence in the light most favorable to the nonmoving
party; however, “conclusional allegations, unsupported assertions, or
presentation of only a scintilla of evidence” are insufficient. McFaul v.
Valenzuela, 684 F.3d 564, 571 (5th Cir. 2012).
In his brief to this court, Johnson provides only a conclusory statement
that he “exhausted all available means,” yet he presents no argument
challenging the determination that he did not exhaust his claim that the
defendants failed to protect him from assault. Likewise, he does not challenge
the determination that his retaliation claim lacked merit. Johnson thus
abandons these issues by failing to adequately brief them. See Yohey v. Collins,
985 F.2d 222, 224-25 (5th Cir. 1993).
With respect to his individual-capacity claims, Johnson first argues that
the defendants violated his Eighth Amendment right to be free from cruel and
unusual punishment because he has been confined to a single-person cell for
23 hours per day, which he describes as total isolation, since August 2011. He
contends that the conditions of his confinement have exacerbated his mental
illnesses and caused him serious psychological and physical pain. Assuming
Johnson can show a sufficiently serious deprivation, he also must show that
1 While the summary judgment motion was pending, Johnson moved to dismiss
Lanette Lithicum as a defendant; the district court granted his request.
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prison officials acted with “deliberate indifference” to his health or safety.
Farmer v. Brennan, 511 U.S. 825, 834 (1994). Farmer’s subjective prong
requires that a prisoner demonstrate that the prison official was “aware of
facts from which the inference could be drawn that a substantial risk of serious
harm exist[ed],” that the officer in fact drew such an inference, and that the
officer nevertheless disregarded the risk. Id. at 837.
Johnson does not point to any competent evidence that Executive
Director Brad Livingston, Director Rick Thaler, or Senior Warden Richard
Herrera knew of the conditions about which he complains or that they
deliberately disregarded an excessive risk to human health or safety. See id at
837, 843. Further, Johnson’s claim regarding the conditions in administrative
segregation is largely premised on the defendants’ alleged use of isolation on
an inmate, such as himself, with “serious mental illness.” However, he fails to
explain how this risk was, as he claims, obvious to any of the defendants when
the record demonstrates that Johnson was diagnosed only with post-traumatic
stress disorder for which he was prescribed medication. The standard required
to succeed on a deliberate-indifference claim is “extremely high,” and Johnson
has not met it here. See Domino v. Texas Dep’t of Criminal Justice, 239 F.3d
752, 756 (5th Cir. 2001).
In Johnson’s second issue, he maintains that he is “totally incapacitated”
in the administrative segregation unit and that prison officials violated his
constitutional rights by denying him access to adequate mental health care.
However, Johnson’s assertions that he has been denied access to mental health
care and that he suffers from chronic mental illness, severe paranoia,
psychosis, and suicidal thoughts are rebutted by his mental health records.
Gobert v. Caldwell, 463 F.3d 339, 346 n.24 (5th Cir. 2006). Johnson’s claim
essentially amounts to a disagreement with the mental health care he has been
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provided. Such disagreement does not constitute deliberate indifference to his
medical needs. Id. at 346.
As to his official-capacity claims, Johnson vaguely refers to
“unconstitutional and unlawful policies and practices” regarding his mental
illnesses. He also maintains that the defendants have “tacitly accepted . . . a
code of silence” encouraging abuse on prisoners. These assertions, which are
conclusory and without factual support, are insufficient to defeat summary
judgment. See McFaul, 684 F.3d at 571.
Johnson also contends that the district court erred in denying his request
for injunctive relief. This contention fails because he did not establish success
on the merits. See VRC LLC v. City of Dallas, 460 F.3d 607, 611 (5th Cir.
2006).
Finally, Johnson challenges the district court’s denial of his motion for
the appointment of counsel. However, no exceptional circumstances exist as
he has demonstrated an ability to litigate and his case is not complex. See
Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982). Accordingly, the denial
of the motion for appointment of counsel was not an abuse of discretion. See
Baranowski v. Hart, 486 F.3d 112, 126 (5th Cir. 2007).
Viewing the evidence in the light most favorable to Johnson, defendants
Livingston, Thaler, and Herrera were entitled to judgment as a matter of law.
See FED. R. CIV. P. 56(a). Johnson’s motion for the appointment of appellate
counsel and his motion for an injunction pending appeal are denied.
AFFIRMED; MOTIONS DENIED.
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