Floyd v. Unknown Nurse Assistant

Case: 16-40606 Document: 00514013501 Page: 1 Date Filed: 05/31/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-40606 FILED
Summary Calendar May 31, 2017
Lyle W. Cayce
Clerk
JALIL RAJAII FLOYD,
Plaintiff-Appellant
v.
UNKNOWN NURSE ASSISTANT; UNKNOWN DEPUTY,
Defendants-Appellees
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 3:14-CV-174
Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *
Jalil Rajaii Floyd, now Texas prisoner # 572644, appeals the summary
judgment dismissal of his 42 U.S.C. § 1983 lawsuit against an unnamed deputy
at the Brazoria County Jail for deliberate indifference to his serious medical
needs while he was a pretrial detainee. Although he also appears to renew his
deliberate indifference claims against an unnamed nurse assistant, he did not
file a timely notice of appeal from the district court’s order dismissing those
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-40606
claims. Accordingly, his appeal of those claims is dismissed for lack of
jurisdiction. See Bowles v. Russell, 551 U.S. 205, 214 (2007);
FED. R. APP. P. 4(a)(1).
We review the district court’s grant of summary judgment de novo.
Nickell v. Beau View of Biloxi, L.L.C., 636 F.3d 752, 754 (5th Cir. 2011). Floyd
renews his allegations that his constitutional rights were violated when the
deputy helped the nurse remove the plastic splint he had received at the
emergency room to stabilize his fractured ankle, replacing it with an Ace
bandage, and when he was placed in an isolation cell without a wheelchair for
four days. He briefs no argument renewing his claim that he was incorrectly
given Ibuprofen instead of morphine and has thus abandoned the claim. See
Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
As the district court determined, the undisputed summary judgment
evidence shows that the deputy was not deliberately indifferent to any serious
medical need when he allegedly helped the nurse assistant remove the splint
from Floyd’s ankle at some point on February 23, 2014, and replace it with an
Ace bandage until his appointment with an orthopedist two days later. The
record does not support that the deputy was aware that Floyd faced a
substantial risk of serious harm, or that he ignored that risk by replacing the
splint with a bandage, or that he intended for Floyd to be harmed. See Farmer
v. Brennan, 511 U.S. 825, 847 (1994); Tamez v. Manthey, 589 F.3d 764, 770
(5th Cir. 2009); Reeves v. Collins, 27 F.3d 174, 176-77 (5th Cir. 1994). There
was no open ankle injury, nor was there a definitive diagnosis of fracture. Even
if the deputy suspected an ankle fracture, there is no indication that he
understood the fracture to present a substantial risk of serious harm and
ignored that risk by removing the splint and replacing it with a bandage,
particularly as Floyd’s medical records show that radiologists had
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No. 16-40606
recommended removal of the splint prior to taking additional x-rays. See
Farmer, 511 U.S. at 837; Wagner v. Bay City, 227 F.3d 316, 324 (5th Cir. 2000).
Further, there is no competent summary judgment evidence to show that the
deputy subjectively intended that Floyd suffer harm. Floyd’s own conclusional
assertions to that effect are insufficient to withstand summary judgment.
Carnaby v. City of Houston, 636 F.3d 183 187 (5th Cir. 2011). At most, the
decision to remove the splint and replace it with an Ace bandage was
negligence or a failure to ascertain a perceptible risk, which does not give rise
to a constitutional claim, rather than deliberate indifference. See Gobert v.
Caldwell, 463 F.3d 339, 346 (5th Cir. 2006).
Regarding the alleged denial of a wheelchair, Floyd abandons by failing
to brief any argument challenging the district court’s determination that he
failed to allege or demonstrate that the deputy was personally involved in the
decision to deny him a wheelchair; this failure is fatal to his claim. See
Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987); see also Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983) (observing
that “[p]ersonal involvement is an essential element of a civil rights cause of
action”). Additionally, the claim was properly dismissed for lack of any alleged
injury resulting from the delay or denial of a wheelchair. See Memphis
Community School Dist. v. Stachura, 477 U.S. 299, 308-09 (1986).
Accordingly, the district court’s order granting summary judgment is
affirmed. Floyd’s motion to supplement his reply brief is denied.
AFFIRMED IN PART; DISMISSED IN PART; MOTION DENIED.
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