Swain v. Price

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 22, 2005
Charles R. Fulbruge III
Clerk
No. 05-20221
Summary Calendar
LARRY D. SWAIN,
Plaintiff-Appellant,
versus
DAVID A. PRICE, TDCJ Correctional Managed Care;
LOWRY E. POWERS, TDCJ Correctional Managed Care;
DR. BETTY J. WILLIAMS, TDCJ Correctional Managed
Care; JOHN DOE, TDCJ-ID Pharmacist; SHANTA
CRAWFORD; JACKIE L. EDWARDS, Warden II,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CV-1643
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Before JONES, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:*
Larry D. Swain, a Texas prisoner (# 379845), appeals from
the district court’s sua sponte order dismissing his pro se 42
U.S.C. § 1983 civil rights action as frivolous, pursuant to 28
U.S.C. § 1915A(b)(1).
In his complaint, Swain sued several officials at his
prison: physician’s assistants (“PA”) David Price and Lowry
Powers, physician Dr. Betty Williams, a “John Doe” pharmacist,
*
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this opinion should not be published and is not precedent except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. 05-20221
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medical administrator Shanta Crawford, and Warden Jackie Edwards.
Swain’s allegations arose out of the treatment that he received
for a urinary tract infection he developed in late 2003. Swain
also asserted a claim under the Americans with Disabilities Act
(“ADA”).
Swain has failed to brief any claim against defendant
pharmacist “John Doe” and any claim under the ADA. These claims
are effectively abandoned. See Yohey v. Collins, 985 F.2d 222,
224-25 (5th Cir. 1993); FED. R. APP. P. 28(a)(9).
The Cruel and Unusual Punishment Clause protects an inmate
from improper medical care, but only if the care is “sufficiently
harmful to evidence deliberate indifference to serious medical
needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). A prison
official acts with deliberate indifference “only if he knows that
inmates face a substantial risk of serious harm and disregards
that risk by failing to take reasonable measures to abate it.”
Farmer v. Brennan, 511 U.S. 825, 847 (1994). “[T]he official
must both be aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists, and he must
also draw the inference.” Id. at 837. We review the district
court’s dismissal under § 1915A de novo. Velasquez v. Woods, 329
F.3d 420, 421 (5th Cir. 2003).
As observed by the district court, Swain’s own allegations
reflect that he was seen repeatedly by defendant PA Price and
that Price gave him different medications in an effort to
No. 05-20221
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alleviate Swain’s infection. Moreover, although defendant PA
Powers allegedly ran Swain out of his office on November 25,
2003, Swain has alleged that Powers did give him certain
medications for his problem. Swain’s allegations are
insufficient to show that either Price or Powers had subjective
awareness that he faced a substantial risk of serious medical
harm. See Farmer, 511 U.S. at 837. The same is true of his
allegations against Dr. Williams. Against all three of these
defendants Swain has alleged no more than inadequate or medical
negligent care, which is insufficient to establish an Eighth
Amendment violation. Victoria W. v. Larpenter, 369 F.3d 475, 483
(5th Cir. 2004).
For the first time in a motion to alter or amend the
judgment, Swain explicitly alleged that PA Powers was responsible
for cutting off medication prescribed for him by a specialist on
December 15, 2003, and that Dr. Williams fabricated a “computer
error” to cover up Powers’s alleged misdeed. Because Swain did
not file a notice of appeal from the district court’s denial of
his postjudgment motion, these allegations are not properly
before the court. See Reeves v. Collins, 27 F.3d 174, 177 (5th
Cir. 1994); FED. R. APP. P. 4(a)(4)(B)(ii).
Swain’s allegations against the supervisory defendants,
Crawford and Edwards, are insufficient to establish a personal
connection between these defendants and Swain’s claims against
them. The claims against these defendants are based on
No. 05-20221
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unsupported assumptions that they knew about Swain’s problems and
failed to act. Swain is effectively relying on a respondeat
superior theory that is not cognizable under 42 U.S.C. § 1983.
See Thompson v. Belt, 828 F.2d 298, 303 (5th Cir. 1987).
The judgment of the district court is AFFIRMED. Swain’s
motion for appointment of counsel is DENIED.