Reeves v. Collins

United States Court of Appeals,
Fifth Circuit.
No. 93-1902
Summary Calendar.
Wayne Morris REEVES, Jr., Plaintiff-Appellant,
v.
James A. COLLINS, Director, Texas Dept. of Criminal Justice,
Institutional Division, et al., Defendants-Appellees.
Aug. 1, 1994.
Appeal from the United States District Court for the Northern
District of Texas.
Before SMITH, BARKSDALE and DeMOSS, Circuit Judges.
PER CURIAM:
Proceeding pro se and in forma pauperis (IFP), Wayne Morris
Reeves, Jr., a TDCJ inmate at the T.L. Roach Unit, filed a civil
rights complaint against TDCJ Director James Collins, Mr. M.
Spiers, and Mr. Stewart, detention officers at the Roach Unit. A
Spears1 hearing was conducted by the magistrate judge to flesh out
the factual basis of the complaint. After testimony was completed
at the hearing, Reeves and counsel for the unserved defendants
signed a consent form for the magistrate judge to conduct all
further proceedings in the case, with any appeal to this Court. 28
U.S.C. § 636(c).
At the hearing, Reeves testified that, on July 4, 1992,
detention officers Spiers and Stewart ordered Reeves and inmate B.
Miles to clean the caulking in the floor of J-wing. Reeves
1
Spears v. McCotter, 766 F.2d 179 (5th Cir.1985).
1
informed the officers that he physically could not do the work due
to medical restrictions from an earlier back injury. Spiers
threatened Reeves with a disciplinary report for failure to obey a
direct order if he failed to do the cleaning. As Reeves worked at
the cleaning job, his back began to hurt. The officers kept
telling the two inmates to continue working without stopping, even
after Reeves informed them of his pain.
At some point, Reeves left his work to speak with Sergeant
Daughty concerning the propriety of the assignment in light of
Reeves' medical restrictions and pain. Daughty told Reeves that he
must obey an officer's orders, unless compliance would be life
threatening, or be subject to discipline, and that any problem with
the work order could be addressed later if needed. Reeves returned
to cleaning the floor. Daughty told Reeves that he would check
into the medical restrictions, but Daughty failed to do so, as did
Spiers and Stewart.
While Reeves continued with this work, his pain increased. At
some point, he developed pain in his lower abdomen. Reeves finally
left J-wing after he observed the formation of a lump on his
abdomen. The subsequent medical examinations revealed that Reeves
had a hernia. Reeves testified that, if any one of these officers
had checked into his medical restrictions, the onset of the hernia
could have been avoided.
Dr. Revell, a physician with TDCJ, also testified at the
hearing, reviewing for the court the medical files on Reeves and
explaining how medical restrictions are recorded in the files.
2
Reeves testified that, after a fall from his bunk in May 1992, he
was told by the examining physician that restrictions would be
placed on him which would limit his physical exertions. Reeves
agreed that no such restrictions were noted in his medical files
and therefore, were not available for the officers to check, if the
officers had been inclined to do so. Further, Reeves testified
that during a physical examination on an unrelated ailment weeks
after the back injury, he told the examining physician that he was
not experiencing any back pain from working.
After the Spears hearing and before the magistrate judge
dismissed the complaint, Reeves filed an amended complaint. Reeves
added Sergeant Murry to the list of defendants. In this complaint,
Reeves alleged that he and inmate Miles, after reporting to work
late, were ordered by Spiers and Stewart to clean the caulking in
J-wing's flooring. Reeves informed them of his back problem and
the medical restrictions. The inmates began to clean, each inmate
doing the work standing. They took an unauthorized break. The
officers ordered them back to work. Spiers took away Reeves' broom
and handed him a wooden palm scrubber to use. Reeves again
informed him of the medical restrictions, to no avail. Shortly
after beginning the new scrub work, Reeves began to experience
lower back pain. Soon after that, both inmates took their lunch
break.
During his lunch break, Reeves spoke with Sgt. Murry, not
Daughty, concerning his work duty and his back pain. Murry told
him to obey the order unless compliance was life threatening.
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After lunch, Reeves worked twenty minutes before experiencing
severe back pains. He went to his cell to rest from the pain.
Spiers ordered him to return to work. When Reeves indicated that
he was going to the infirmary, Spiers threatened to issue a
disciplinary report on Reeves, thus preventing Reeves from leaving
for the infirmary. Within 30 minutes of this incident, during
"count-time," Reeves rested by his cell in severe pain. Spiers
ordered him to return to work despite Reeves' assertions of pain.
For the next 90 minutes or so, Reeves scrubbed the floor,
taking short breaks in an effort to manage the pain. Reeves felt
an intense, severe pain in his abdomen, and he needed physical
assistance from another inmate to get to his cell. Reeves notified
Spiers that he needed to rest. Reeves walked to the infirmary and
was stopped by Spiers, who inquired if the scrubbing was completed.
Spiers again threatened Reeves with disciplinary reports if he left
the building. Reeves ignored the threats and proceeded to the
infirmary where the nurse informed him of the possible hernia.
Reeves was not permitted to return to work. On July 7th, the
physician diagnosed the hernia, and surgery was performed in
August. Surgery revealed the ailment to be a double hernia.
In his order of dismissal, the magistrate judge noted the
contradictions in the facts between Reeves' amended or supplemental
complaint and his Spears testimony. Under either scenario of
facts, the magistrate judge concluded that Reeves had alleged
negligence against the officers, thus failing to state a civil
rights cause of action. The magistrate judge dismissed the
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complaint as frivolous.
Reeves filed a motion for leave to file a supplemental
complaint in order to add Head Nurse/Medical Administrator K. Allen
to the list of defendants for her alleged unauthorized changes to
Reeves' medical classification. Within ten days from entry of
judgment, he also filed2 objections to the dismissal, before filing
his notice of appeal. These objections included Reeves'
allegations against Allen as to facts occurring in September 1992.
The magistrate judge, construing the objections as "a motion to
reconsider and to vacate," denied the motion. The order
specifically noted that Reeves' attempts to supplement his claim
after judgment by adding allegations were futile.
An IFP complaint may be dismissed as frivolous if it lacks an
arguable basis in law or fact. Denton v. Hernandez, --- U.S. ----,
----, 112 S. Ct. 1728, 1733, 118 L. Ed. 2d 340 (1992). This Court
reviews the dismissal for abuse of discretion. Id., --- U.S. at --
--, 112 S. Ct. at 1734. Reeves does not argue that Collins is
liable as a defendant. Therefore, to the extent that supervisory
liability was an issue in this case, it has been abandoned on
appeal. See Eason v. Thaler, 14 F.3d 8, 9 n. 1 (5th Cir.1994).
Reeves argues that in his facts,3 he has alleged deliberate
indifference on the part of the three defendants, Spiers, Stewart,
and Murry. "[D]eliberate indifference to serious medical needs of
2
Reeves could not serve the objections on the defendants
because the defendants were never served with the complaint.
3
The facts restated in the appellate brief resemble the
facts found in the amended complaint.
5
prisoners constitutes the "unnecessary and wanton infliction of
pain' proscribed by the Eighth Amendment.... whether the
indifference is manifested by prison doctors or by prison guards in
intentionally denying or delaying access to medical care...."
Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S. Ct. 285, 291, 50
L. Ed. 2d 251 (1976) (citation and footnotes omitted).
The Supreme Court recently adopted "subjective recklessness as
used in the criminal law" as the appropriate definition of "
"deliberate indifference' under the Eighth Amendment." Farmer v.
Brennan, --- U.S. ----, ----, 114 S. Ct. 1970, 1980, --- L.Ed.2d ---
- (1994).
[A] prison official cannot be found liable under the Eighth
Amendment ... unless the official knows of and disregards an
excessive risk to inmate health or safety; the 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 ----, 114 S.Ct. at 1979. Under exceptional circumstances,
a prison official's knowledge of a substantial risk of harm may be
inferred by the obviousness of the substantial risk. See id., at
---- and n. 8, 114 S. Ct. at 1981-82 and n. 8.
Under the facts alleged by Reeves, in either version, this
standard is not met. Even if the officers had checked to see if
medical restrictions had been placed on Reeves for his back, Reeves
agreed that the records did not state such restrictions, whether by
inadvertence or intention of the medical care providers. Moreover,
there was no indication at the time, besides Reeves' assertions of
pain, that Reeves had a hernia. As such, the officers' disregard
of Reeves' assertions of pain, in light of Reeves' allegations of
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repeatedly returning to work, taking short breaks to relieve the
pain, and finally going to the infirmary when the pain became
unbearable, amounts to no more than negligence. See Johnson v.
Treen, 759 F.2d 1236, 1238 (5th Cir.1985) (defining "wanton").
To the extent that Reeves argues that Spiers and Stewart
violated TDCJ policy by failing to inquire into his medical
restrictions and by disciplining Reeves for lateness by giving him
the scrubbing job, this issue was not raised in the district court.
This Court will not address this issue for the first time on
appeal. See Murray v. Anthony J. Bertucci Constr. Co., Inc., 958
F.2d 127, 128 (5th Cir.), cert. denied, --- U.S. ----, 113 S. Ct.
190, 121 L. Ed. 2d 134 (1992).
Therefore, the district court did not abuse its discretion in
dismissing the complaint for frivolousness. See Denton, --- U.S.
at ----, 112 S. Ct. at 1734.
Reeves argues that Head Nurse/Medical Administrator Allen is
liable for various acts and omissions. Allen was not named as a
defendant when the district court dismissed the complaint for
frivolousness.
Entry of final judgment was September 7, 1993, although the
magistrate judge signed the judgment on September 3, 1993. Reeves'
motion seeking leave to supplement his complaint was mailed on
August 31, 1993, but was filed on the day that final judgment was
entered. Reeves also filed objections to the dismissal of his
complaint, objections which included reference to Allen's
culpability, and calling into question the correctness of the
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magistrate judge's dismissal. The magistrate judge construed the
objections as a "motion to reconsider and to vacate," and he denied
the motion, after Reeves had filed notice of appeal. Within the
magistrate judge's order denying the order, he noted that Reeves'
attempts to supplement his claim after judgment, attempts including
the motion for leave to file a supplemental complaint, were futile.
Reeves did not file a second notice of appeal.
Under former Fed.R.App.P. 4(a)(4), this Court would lack
jurisdiction over the entire appeal because Reeves failed to file
notice of appeal after entry of the order disposing of his motion
which was, liberally construed, a Fed.R.Civ.P. 59(e) motion. See
Harcon Barge Co., Inc. v. D & G Boat Rentals, Inc., 784 F.2d 665,
668 (5th Cir.), cert. denied, 479 U.S. 930, 107 S. Ct. 398, 93
L. Ed. 2d 351 (1986); see also Craig v. Lynaugh, 846 F.2d 11, 13
(5th Cir.1988) (if service of process has not occurred, and "[i]f
a judgment has been entered, a Rule 59(e) motion, or its legal
equivalent, filed within 10 days after the date of entry of
judgment is timely even though it has not been served on the
defendants"). Although notice of appeal was filed before the
effective date of the new rules of appellate procedure, this Court
will apply retroactively the new rules when it is just to do so.
See Burt v. Ware, 14 F.3d 256, 258-60 (5th Cir.1994). As such,
under new Rule 4(a)(4), this Court has jurisdiction over the final
judgment, but the new rule requires "[a] party intending to
challenge an alteration or amendment of the judgement ... [to] file
an amended notice of appeal" in order to appeal that alteration.
8
See Rule 4(a)(4).
The order and judgment dismissing Reeves' complaint did not
encompass any allegation or cause of action against Allen. The
order denying reconsideration covered these allegations. Because
Reeves failed to amend his notice of appeal, his arguments covering
these allegations are not properly before this Court.
AFFIRMED.
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