Jeffrey Quintana v. Unknown Agents

Case: 17-10053 Document: 00514838562 Page: 1 Date Filed: 02/18/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 17-10053 United States Court of Appeals
Summary Calendar
Fifth Circuit
FILED
February 18, 2019
JEFFREY SCOTT QUINTANA, Lyle W. Cayce
Clerk
Plaintiff-Appellant
v.
UNKNOWN AGENTS, Fort Worth Police; S. KELM, Fort Worth Police Officer;
CITY OF FORT WORTH, TEXAS,
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:14-CV-472
Before REAVLEY, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Jeffrey Scott Quintana, Texas prisoner # 0123448, appeals the district
court’s dismissal of his 42 U.S.C. § 1983 complaint against the City of Fort
Worth, Texas (“the City”), for a failure to provide him a medical assessment
and care following an automobile accident. See 28 U.S.C. §§ 1915(e)(2)(b)(i)
and (ii); 1915A(b)(1). Quintana argues that the City, in violation of the Eighth
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-10053
Amendment, failed to medically assess or treat him for 72 hours after the
accident, during which time he was “incoherent” and “unaware.”
We lack jurisdiction to consider Quintana’s Fifth and Fourteenth
Amendment equal protection claims and his claims against the Fort Worth
Police Department. The district court dismissed these claims midway through
the litigation in a Final Judgment pursuant to Federal Rule of Civil Procedure
54(b), which Quintana did not timely appeal. See Bowles v. Russell, 551 U.S.
205, 214 (2007); Zapata Gulf Marine Corp. v. P.R. Mar. Shipping Auth., 925
F.2d 812, 814-15 (5th Cir. 1991).
We review de novo the district court’s dismissal of the complaint as
frivolous and for failure to state a claim. See Coleman v. Lincoln Par. Det. Ctr.,
858 F.3d 307, 308-09 (5th Cir. 2017). The claims that we have jurisdiction to
address are directed solely against the City, so they must satisfy the standards
for municipal liability under Monell v. Department of Social Services, 436 U.S.
658 (1978). Quintana cites no official policy of the City providing for a delay in
assessment or treatment. See Williams v. Kaufman County, 352 F.3d 994,
1013 (5th Cir. 2003). Nor does Quintana allege “[any] persistent, widespread
practice of city officials or employees, which, although not authorized by
officially adopted and promulgated policy, is so common and well settled as to
constitute a custom that fairly represents municipal policy.” Fields v. City of
South Houston, Tex., 922 F.2d 1183, 1192 (5th Cir. 1991) (quoting Webster v.
City of Houston, 735 F.2d 838, 841 (5th Cir. 1984) (en banc)). Accordingly, we
find no error in the district court’s determination that Quintana failed to show
that the City may be held responsible under § 1983 for the constitutional injury
he alleges.
To the extent that Quintana urges a Fourteenth Amendment claim that
the City failed to protect him by training for and providing appropriate medical
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No. 17-10053
care after the accident, he alleges, at the most, negligent conduct, which is not
actionable under § 1983. See, e.g., Jacquez v. Procunier, 801 F.2d 789, 792 (5th
Cir. 1986). To the extent that Quintana means to add new claims of “non-
compliance conduct” and failure to provide medical care against the
“Agents/Staff/Employees of County of Tarrant, Texas” and the “security and
medical staff” of the “detention facility for the County of Tarrant, Texas,” we
decline to consider them because they were not presented to the district court.
See Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991).
Quintana seeks a remand of this matter to the district court so that he
may supplement or amend his complaint. Quintana had prior opportunities in
the district court to remedy the deficiencies of his original complaint, and he
twice filed supplemental pleadings. He does not argue that his prior
opportunities to remedy the deficiencies of his complaint were insufficient. See
Eason v. Thaler, 14 F.3d 8, 9-10 (5th Cir. 1994). His request that we remand
this case to the district court is denied.
Quintana has also moved for the appointment of counsel. “A § 1983
plaintiff, even if demonstrably indigent, is not entitled to appointed counsel as
a matter of right.” Naranjo v. Thompson, 809 F.3d 793, 799 (5th Cir. 2015)
(citing Ulmer v. Chancellor, 691 F.2d 209, 212-13 (5th Cir. 1982)). The
appointment of counsel is not required “unless the case presents exceptional
circumstances.” Id. (quoting Ulmer, 691 F.2d at 212). For the foregoing
reasons, Quintana has failed to demonstrate exceptional circumstances. His
request for counsel is therefore denied.
For the reasons stated, Quintana’s appeal is DISMISSED in part for a
lack of jurisdiction, and the judgment of the district court AFFIRMED in part.
Quintana’s motion for the appointment of counsel is DENIED. See Ulmer v.
Chancellor, 691 F.2d 209, 212-13 (5th Cir. 1982).
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