Wesber v. Lavelle, et al

Filing 920100208

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Case: 09-10016 Document: 00511022567 Page: 1 Date Filed: 02/08/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED February 8, 2010 No. 09-10016 Charles R. Fulbruge III Clerk DEON SILVEN WESBER Plaintiff - Appellant v. DR LAVELLE; DR ADAMES; GARY L MESSER; LIEUTENANT ISRAEL L REYNA; SERGEANT TOMMY L CHISUM Defendants - Appellees Appeal from the United States District Court for the Northern District of Texas No. 2:08-CV-112 Before JOLLY and DENNIS, Circuit Judges, and BOYLE, District Judge.* PER CURIAM:** We affirm the district court's dismissal of the claims against Doctors Lavelle and Adames. We vacate and remand for a Spears 1 hearing with respect to the claims against Messer, Reyna, and Chisum to allow the plaintiff to provide the factual details to determine whether he asserts a viable claim under Farmer * District Judge of the Northern District of Texas, sitting by designation. 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 1 ** Spears v. McCotter, 766 F.2d 179 (5th Cir.1985). Case: 09-10016 Document: 00511022567 Page: 2 Date Filed: 02/08/2010 No. 09-10016 v. Brennan, 511 U.S. 825 (1994), and its progeny. At the Spears hearing, the plaintiff shall detail all the medical evidence that supports his claim of disability, the specific work assignments that he performed that injured his back, the nature of such injuries and how they occurred, who made such work assignments, and the specific evidence of exactly what each defendant knew about the plaintiff's disability, how each defendant knew of the disability, and all other subjective knowledge of each defendant concerning the "hoe field squad" work assignment that shows deliberate indifference by such defendant to Wesber's serious medical requirements. The district court shall thereafter issue such orders or conduct such further proceedings as are, in its judgment, necessary and appropriate. For any appellate review of this court, a notice of appeal must be filed from the final judgment of the district court. AFFIRMED in part; VACATED in part; and REMANDED. 2

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