Lloyd Richard v. Willy Martin, Jr.

Case: 09-30159 Document: 00511186054 Page: 1 Date Filed: 07/27/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 27, 2010
No. 09-30159
Summary Calendar Lyle W. Cayce
Clerk
LLOYD A. RICHARD,
Plaintiff-Appellant
v.
WILLY J MARTIN, JR., Sheriff; HERIA WILLIAMS, Chief Deputy; CLAUDE
LOUIS, Detective; JOHN DUNN, Officer; UNIDENTIFIED PARTY; DALE
HYMEL, St. James President; EDWARD SCOTT, Assistant Warden; FARIN
SCIONEAUX, Warden; ROXIE BATISTE, Canteen Manager; HANK STEIB,
Jailor; OSBORNE WALLACE, Corporal,
Defendants-Appellees
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:08-CV-1399
Before BENAVIDES, PRADO and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Lloyd A. Richard appeals the district court’s dismissal as frivolous and for
failure to state a claim, pursuant to 28 U.S.C. § 1915(e)(2) and 42 U.S.C. § 1997e,
of his 42 U.S.C. § 1983 civil rights lawsuit. Review is for plain error because
Richard did not timely file objections to the magistrate judge’s report, despite
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-30159
having been warned that the failure to object would result in plain error review
of his contentions on appeal. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d
1415, 1428-29 (5th Cir. 1996) (en banc). To demonstrate plain error, Richard
must show a forfeited error that is clear or obvious and affects his substantial
rights. Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). Even if he makes
such a showing, this court has the discretion to correct the error but only if it
“seriously affect[s] the fairness, integrity, or public reputation of judicial
proceedings.” Id. (internal quotation marks and citation omitted).
Richard renews his claims of deliberate indifference in connection with the
medical care he received following a transport-van accident and of retaliation.
He has abandoned by failing to brief any challenge to the district court’s
dismissal of his claim against St. James Parish President Dale Hymel. See
Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). Richard devotes much of
his brief to his claim that St. James Parish Sheriff’s Office employees at the
scene of the van accident conspired to violate state law in various ways, most
specifically by failing to report the accident. His claims of state law violations
are not cognizable. See Johnson v. Dallas Indep. Sch. Dist., 38 F.3d 198, 200
(5th Cir. 1994).
Richard’s allegations do not demonstrate that prison officials were
deliberately indifferent to his serious medical needs. First, he has waived any
challenge to the district court’s determination that his symptoms of neck pain,
which resolved within a few weeks, and chronic mild back pain did not present
a substantial risk of serious medical harm. See Yohey, 985 F.2d at 224-25; see
also Wagner v. Bay City, Tex., 227 F.3d 316, 324 (5th Cir. 2000). Second,
Richard’s own pleadings and testimony, along with the medical records,
establish that he had routine visits to a medical professional and was given both
over-the-counter and prescription medications to alleviate his symptoms and
pain. Thus, the claim does not give rise to a constitutional violation. See
Mayweather v. Foti, 958 F.2d 91, 91 (5th Cir. 1992). Moreover, Richard has not
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demonstrated that he suffered any injury, much less substantial harm, resulting
from the alleged 10-day delay in seeing a nurse and/or the 20-day delay in being
taken to a doctor. See Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993).
Although Richard now complains that Dr. Poche intentionally mistreated
and misdiagnosed him, he does not explain in what manner he has been
misdiagnosed or what the correct diagnosis should have been. His disagreement
with the doctor’s treatment, specifically, the failure to provide him with a neck
brace, is insufficient to establish a cognizable § 1983 claim. See Varnado v.
Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991). Accordingly, with respect to his
deliberate indifference claims, Richard has failed to show a clear or obvious error
affecting his substantial rights. See Puckett, 129 S. Ct. at 1429.
Richard renews his claims that the prison officials retaliated against him
for filing grievances about his medical care and for filing the instant lawsuit by
failing to process his statement of prison account form, which he needed in order
to proceed in forma pauperis (IFP), by denying him needed legal supplies, and
by placing him in solitary confinement. Richard’s complaints regarding the nine-
day delay in processing his IFP form fail for lack of a retaliatory adverse act
because he was granted leave to proceed IFP in the district court despite any
delay. See Jones v. Greninger, 188 F.3d 322, 324-25 (5th Cir. 1999); see also
Morris v. Powell, 449 F.3d 682, 684-86 (5th Cir. 2006). The claim regarding the
denial of “indigent supplies” similarly fails for lack of a retaliatory adverse act.
Although Richard asserts that, on March 10, 2008, he was denied supplies
necessary to his lawsuit in retaliation for having filed the suit, the record
demonstrates that he was able to pursue the instant suit actively, filing
numerous amendments to his complaint and a response to the defendants’
answer, which filings indicate that his right of access to the court was not
impaired in any way. See Morris, 449 F.3d at 684-86.
More problematic is the dismissal of Richard’s claim of retaliation in
connection with his placement in solitary confinement after filing a grievance
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No. 09-30159
regarding his medical care. The defendants did not provide any explanation or
submit any disciplinary records regarding Richard’s alleged placement in
solitary confinement and, although the district court acknowledged that the
claim had been raised, it did not specifically address it. On their face, Richard’s
allegations state a claim for retaliation. See Jones, 188 F.3d at 324-25. He
invoked his First Amendment right to file a grievance and asserts that Officer
Steib and Corporal Wallace retaliated against him for exercising that right by
placing him, on the same day he submitted the grievance through Officer Steib,
in solitary confinement for 13 hours in a four-foot-by-eight-foot cell without a
mattress or toilet and without his having committed any disciplinary infraction
justifying the action. The allegations are sufficient to show causation, a
chronology of events from which retaliatory motive can plausibly be inferred,
and a more-than-de-minimis retaliatory adverse act. See Woods v. Smith, 60
F.3d 1161, 1166 (5th Cir. 1995); see also Morris, 449 F.3d at 687. Richard has
thus demonstrated plain error which affected his substantial rights resulting
from the dismissal of his claim as either frivolous or for failure to state a claim.
See Puckett, 129 S. Ct. at 1429; see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949
(2009); Gonzales v. Wyatt, 157 F.3d 1016, 1019 (5th Cir. 1998). This court will
exercise its discretion to correct the error. See Puckett, 129 S. Ct. at 1429.
Consequently, although further evidence may demonstrate that the retaliatory-
solitary-confinement claim is meritless, the district court’s dismissal of the claim
is vacated, and the claim is remanded for further proceedings. The remainder
of the district court’s judgment is affirmed. Richard’s motion for the
appointment of counsel is denied. See Cupit v. Jones, 835 F.2d 82, 86 (5th Cir.
1987).
AFFIRMED IN PART, VACATED IN PART, AND REMANDED; MOTION
FOR THE APPOINTMENT OF COUNSEL DENIED.
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