Steve Green v. Ross, et al

Filing 920100902

Opinion

Case: 09-20540

Document: 00511224022

Page: 1

Date Filed: 09/02/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-20540 S u m m a r y Calendar September 2, 2010 Lyle W. Cayce Clerk

S T E V E GREEN, P la in t if f -A p p e lla n t v. M IS S ROSS, Shift Officer; CHRISTOPHER DOUGLAS, also known as Bull Dog; N U R S E RICHEY, D e fe n d a n t s -A p p e lle e s

A p p e a l from the United States District Court fo r the Southern District of Texas USDC No. 4:07-CV-1948

B e fo r e HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges. P E R CURIAM:* S t e v e Green, Texas prisoner # 1436873, appeals the district court's grant o f summary judgment to the defendants in his 42 U.S.C. § 1983 action. Green a lle g e d that while he was a pretrial detainee at the Brazos County Jail, guard B illie Jean Ross failed to protect him by placing him in the same holding tank a s inmate Christopher Douglas after Ross had broken up a fight between Green a n d Douglas. Green asserted that Douglas subsequently assaulted him and

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Document: 00511224022 Page: 2 No. 09-20540

Date Filed: 09/02/2010

b r o k e his rib. He maintained that Nurse Darlene Ritchey did not always provide h im the proper medication for his broken rib and gave him incorrect advice r e g a r d in g how to lie down with a broken rib. W it h the benefit of liberal construction, Green argues that the district c o u r t erred by granting summary judgment on his failure to protect claim b e c a u s e he was negligently placed in danger by Ross. He maintains that

a ffid a v it s he submitted in the district court list witnesses to both of the a lt e r c a t io n s between him and Douglas. Green states that Douglas would verify t h a t both altercations occurred and that Douglas would not have broken Green's r ib if Ross had not placed Green in the same holding tank. I n support of their motion for summary judgment, the defendants s u b m it t e d an affidavit from Ross in which she averred that she had never w it n e s s e d Green being involved in a physical altercation with Douglas or anyone e ls e . Ross further averred that Green was not on a no-contact list with any p r is o n e r because of a physical altercation. The defendants also submitted

G r e e n 's inmate incident history report showing that there had been no reported p r o b le m s between Green and Douglas. The commander of the Brazos County J a il averred that Green had never filed a complaint about Douglas. I n the district court, Green contended that Ross should have placed him o n a "no contact" list with respect to the other inmate. However, he failed to b r in g forward any competent summary-judgment evidence that any such failure c o n s t i t u t e d deliberate indifference to his need for protection as necessary to s u p p o r t a failure-to-protect claim. See, e.g., Neals v. Norwood, 59 F.3d 530, 533 (5 t h Cir. 1995). Green's averments regarding how third party witnesses would t e s t ify were not competent summary judgment evidence. See FED. R. CIV. P. 5 6 ( e ); Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1 9 8 7 ). As the defendants submitted a properly supported motion for summary ju d g m e n t and Green did not produce sufficient evidence to show the existence o f a genuine issue of material fact, the district court did not err by granting 2

Case: 09-20540

Document: 00511224022 Page: 3 No. 09-20540

Date Filed: 09/02/2010

s u m m a r y judgment on Green's failure to protect claim. See United States v. L a w r e n c e , 276 F.3d 193, 197 (5th Cir. 2001). With the benefit of liberal construction, Green argues that the district c o u r t erred by granting summary judgment on his denial of medical care claim. Green contends that he was "not given the proper medication," that Ritchey " c la im s it was a call in medication when we all know a fresh broke rib hurts" and t h a t , "being a nurse [Ritchey] should know this fact [] and would give pain m e d ic a t io n s freely." Green further asserts that "giving [incorrect] medical

a d v ic e . . . is not `common,'" apparently referring to his claim that Ritchey gave h im incorrect medical advice regarding how to lie down with a broken rib. I n the pleadings and affidavits he filed in the district court, Green alleged o n ly that Ritchey negligently and carelessly gave him the wrong medication, o n c e insisted on calling in the request for medication before giving the m e d ic a t io n to him, gave him incorrect advice regarding how to lie down with a b r o k e n rib, and would not allow him to have an extra mat on which to sleep. Green, however, did not allege or aver that Ritchey intentionally treated him in c o r r e c t ly or that he suffered any injury from his alleged mistreatment. The d e fe n d a n t s submitted evidence indicating that Green received his proper m e d ic a t io n when he made a proper request for the medication and did not refuse t o take it. As Green did not provide evidence showing that Ritchey's actions c o n s t it u t e d more than negligence or that he suffered any injury due to Ritchey's a c t io n s , the district court did not err by granting summary judgment on Green's d e n ia l of medical care claim. See Wagner v. Bay City, Tex., 227 F.3d 316, 324 (5 t h Cir. 2000); Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991). F o r the first time on appeal, Green alleges that, since the filing of his c o m p la in t , he was sexually assaulted and that he now suffers from "rape trauma s y n d r o m e ." Because this claim was not raised in the district court, we do not c o n s id e r it. See Stewart Glass & Mirror, Inc. v. U.S. Auto Glass Disc. Ctrs., Inc., 2 0 0 F.3d 307, 316-17 (5th Cir. 2000). 3

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Document: 00511224022 Page: 4 No. 09-20540

Date Filed: 09/02/2010

A F F I R M E D ; MOTION FOR APPOINTMENT OF COUNSEL DENIED; M O T I O N FOR ENTRY OF DEFAULT JUDGMENT DENIED; MOTION FOR S E T T L E M E N T OF APPEAL DENIED; MOTION FOR LEAVE TO FILE S U P P L E M E N T A L REPLY BRIEF GRANTED.

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