Barnett v. Foster

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-50715
No. 97-50187
Summary Calendar
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MICHAEL LEE BARNETT,
Plaintiff-Appellant,
versus
TERRY FOSTER, WARDEN; JOY STOUT, LVN;
D. LANCASTER, MD; RICHARD FEARS; WAYNE SCOTT;
DAVID KEITH; LANNETTE LINTHICUM; WEATHERBY, LT;
PIERCE, CAPT.; HORN, MAJOR; ALVAREZ, WARDEN;
RICHARD LOVE, HEALTH ADMIN; JUANITA DORMAN,
CLASS SUPV; ANIZAN, CLASS COUNSELOR,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Texas
USDC No. P-95-CA-32
February 26, 1998
Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Michael Lee Barnett, Texas state prisoner No. 680546, appeals
the summary judgment awarded the defendants in his 42 U.S.C. § 1983action. We AFFIRM.
I.
*
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that this opinion should not be published and is not precedent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.
Barnett filed this action contending primarily that prison
personnel were deliberately indifferent to his serious medical
needs in violation of the Eighth Amendment and retaliated against
him when he asserted his right to medical attention and filed this
action. The district court granted the summary judgment on the
basis that the defendants were entitled to absolute immunity in
their official, and to qualified immunity in their individual,
capacities. The court dismissed various other claims as frivolous.
II.
Of course, we review a summary judgment de novo. See, e.g.,
Amburgey v. Corhart Refractories Corp. Inc., 936 F.2d 805, 809 (5th
Cir. 1991). Such judgment is proper when, viewing the evidence in
the light most favorable to the non-movant, “‘there is no genuine
issue as to any material fact and ... the moving party is entitled
to a judgment as a matter of law.’” Id. (quoting FED. R. CIV. P.
56(c)).
A.
Concerning absolute immunity, Barnett does not present any
evidence or explanation regarding why the defendants are not
entitled to such immunity under the Eleventh Amendment.
Accordingly, Barnett has failed to demonstrate any error. See
Kentucky v. Graham, 473 U.S. 159, 169 (1985).
B.
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Concerning qualified immunity regarding claims defendants were
deliberately indifferent to Barnett’s serious medical needs and
that they retaliated against him for asserting his rights to
adequate medical care and for filing the instant suit, the well-
known test for such immunity is whether (1) the plaintiff has
alleged a violation of a clearly established constitutional right;
and (2) whether the defendants’ conduct was objectively
unreasonable in the light of the clearly established law at the
time of the incident. E.g., Rankin v. Klevenhagen, 5 F.3d 103, 105
(5th Cir. 1993). The summary judgment evidence reveals that, at
most, the defendants were negligent, but not deliberately
indifferent, regarding any serious medical needs. See Varnado v.
Lynaugh, 920 F.2d 320, 321 (5th Cir. 1992). Barnett’s allegations
of retaliation are conclusional and not supported by the evidence.
See Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995).
Because Barnett does not demonstrate a constitutional injury,
we need not address whether the district court properly determined
that the defendants were entitled to qualified immunity. See,
e.g., Quives v. Campbell, 934 F.2d 668, 671 (5th Cir. 1991).
Instead, we affirm on the alternate basis that Barnett did not
state a claim of a violation of a clearly established
constitutional right. See Sojurner T. v. Edwards, 974 F.2d 27, 30
(5th Cir. 1992).
C.
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Barnett contends that the district court erred by not allowing
him to adequately complete discovery before granting summary
judgment. Our review demonstrates that the court did not abuse its
discretion in making discovery decisions. See, e.g., Williamson v.
U.S. Dept. of Agriculture, 815 F.2d 368, 382 (5th Cir. 1987).
D.
Barnett also contends that the district court erred by not
appointing him counsel. The court did not abuse its discretion,
because the instant case is not factually complex, and Barnett’s
pleadings adequately demonstrated his ability to litigate it. See
Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir. 1982).
E.
Barnett does not challenge the denial of injunctive relief.
Because he has failed to challenge this issue on appeal, it is
deemed abandoned. See, e.g., Brinkmann v. Dallas County Deputy
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
F.
Likewise, the following issues presented by this appeal are
not adequately argued, and are thus abandoned, id.; see also Al-
Ra’id v. Ingle, 69 F.3d 28, 31 (5th Cir. 1995): that the
defendants have arbitrarily punished certain inmates by changing
custody levels, earning classes and taken away good time credits
thus creating separate classes of inmates; that the district court
failed to liberally construe Barnett’s complaint; and that the
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Texas Department of Criminal Justice should have been a separate
defendant.
III.
Accordingly, Barnett’s requests for relief in the form of 1)
allowing him to amend his complaint; 2) allowing him to complete
discovery; 3) granting a restraining order and injunctive relief
against the defendants; 4) ordering TDCJ to amend his prison record
and time-earning status; 5) remanding this case to the Eastern
District; and (6) his request for appointment of counsel on appeal
are DENIED.
In the light of our holding, the defendants motions to dismiss
the appeal are DENIED as unnecessary.
Accordingly, the judgment is AFFIRMED.
JUDGMENT AFFIRMED; MOTIONS TO DISMISS DENIED;
REQUESTED RELIEF DENIED
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