Bailey v. Cantrell ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 28, 2008
No. 07-10651
Summary Calendar Charles R. Fulbruge III
Clerk
ROBERT EARL BAILEY
Plaintiff-Appellant
v.
MIKE CANTRELL, Dallas County Commissioner; KENNETH MAYFIELD,
Dallas County Commissioner; MAURINE DICKEY, Dallas County
Commissioner; DR PAUL MILLS; SHERIFF LUPE VALDEZ; DALLAS
COUNTY TEXAS
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:05-CV-637
Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Robert Bailey (“Bailey”) appeals the district court’s grant of summary
judgment to the defendants and dismissal of his § 1983 civil rights action in
which he alleged that he was provided inadequate medical and dental care in
violation of his Eighth and Fourteenth Amendment rights. After a stay in the
Dallas County Jail, first as a pretrial detainee and then as a convicted prisoner,
*
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should not be published and is not precedent except under the limited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. 07-10651
Bailey filed a complaint against Dallas County commissioners Mike Cantrell,
Kenneth Mayfield, and Maurine Dickey; Staff Physician Dr. Paul Mills; Dallas
County Sheriff Lupe Valdez; and Dallas County. He alleges that Mills and the
dentist for the county jail failed to provide appropriate treatment for his
Hepatitis C, hypertension, and dental decay and that Dallas County, Sheriff
Valdez, and the county commissioners had knowledge of deficiencies in the
provision of health care in the jail but failed to correct them.
Bailey first argues that the district court erred in denying his requests for
the appointment of counsel. As we have said before, a “civil rights complainant
has no right to the automatic appointment of counsel.” Ulmer v. Chancellor, 691
F.2d 209, 212 (5th Cir. 1982). Bailey fails to show that his case presents the sort
of exceptional circumstances that require the appointment of counsel and,
therefore, fails to demonstrate that the district court abused its discretion in
denying his motions for appointment. See id..
The district court determined that Bailey was complaining about episodic
acts or omissions rather than the general conditions of his confinement. The
complaints focused on individual treatment received from or denied by the
physician and dentist. See Scott v. Moore, 114 F.3d 51, 53 (5th Cir. 1997). All
of the assertions regarding the policies or customs of Sheriff Valdez, the Dallas
County commissioners, and Dallas County derive from these specific treatment
decisions. See id. The district court properly characterized the claim as one
involving episodic acts or omissions, which means that Bailey must establish a
constitutional violation “done with subjective deliberate indifference to [his]
constitutional rights.” See id. at 53–54.
Bailey has failed to show any genuine issue of material fact as to whether
Mills and the dentist demonstrated subjective deliberate indifference to his
serious medical needs as a pretrial detainee or convicted prisoner. See FED. R.
CIV. P. 56(c); Wilson v. Seiter, 501 U.S. 294, 297–98, 302–03 (1991); Gibbs v.
Grimmette, 254 F.3d 545, 548–49 (5th Cir. 2001). He admits that both Mills and
2
No. 07-10651
the dentist responded to his requests for medical treatment and treated his
medical conditions. While he disagrees with the treatment received, simple
disagreement does not constitute a constitutional violation. See Norton v.
Dimazana, 122 F.3d 286, 292 (5th Cir. 1997). Bailey’s conclusory assertions that
he suffered harm from alleged delays in treatment are insufficient to create a
dispute of material fact. See Michaels v. Avitech, Inc., 202 F.3d 746, 754–55 (5th
Cir. 2000); Alizadeh v. Safeway Stores, Inc., 802 F.2d 111, 113 (5th Cir. 1986).
Moreover, in the absence of an underlying constitutional violation, the policies
or customs adopted or maintained by the Dallas County commissioners, Dallas
County, or Valdez are not material facts. See Scott, 114 F.3d at 54; FED. R. CIV.
P. 56(c).
Bailey argues that the district court erred in denying a motion to compel,
a subpoena for a report on conditions in the Dallas County jail, and a motion to
continue to permit him more time to authenticate his copy of the report on
conditions in the jail. Because he has failed to show an underlying constitutional
violation in the provision of medical and dental care, evidence regarding the
policies, practices, and customs of the Dallas County Jail and county officials is
not material to his claims. See Scott, 114 F.3d at 54; Int’l Shortstop, Inc. v.
Rally’s, Inc., 939 F.2d 1257, 1264 (5th Cir. 1991). Therefore, the district court
did not abuse its discretion in denying the motions and in refusing to issue the
subpoena. See Moore v. Willis Indep. Sch. Dist., 233 F.3d 871, 876 (5th Cir.
2000); U.S. v. Soape, 169 F.3d 257, 268–70 (5th Cir. 1999); United States v.
Barnett, 197 F.3d 138, 144 (5th Cir. 1999).
The district court also denied Bailey’s motion for appointment of an expert.
Federal Rule of Evidence 706(a) contemplates the appointment of an expert to
assist the court, but Bailey sought an expert for his own benefit. See Hannah v.
United States, 523 F.3d 597, 600 (5th Cir. 2008). Moreover, it was at an
inappropriate stage of the litigation, after he had filed responses to the
defendants’ dispositive motions. See Hannah, 523 F.3d at 600. The district
3
No. 07-10651
court did not abuse its discretion by denying Bailey’s motion for a court-
appointed medical expert. See Fugitt v. Jones, 549 F.2d 1001, 1006 (5th Cir.
1977).
There are further arguments that the district court erred when it denied
Bailey’s motion to supplement his response to the motions for summary
judgment, refused to admit his declaration in support of the motion to
supplement, refused to admit the appendix in support of the motion, and denied
his “request to establish plaintiff’s expert.” By failing to brief these arguments,
however, Bailey has abandoned them. See Brinkmann v. Dallas County Deputy
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
For the reasons set forth above, the judgment of the district court is
AFFIRMED.
4