Lloyd Richard v. Willy Martin, Jr., et al

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Lloyd Richard v. Willy Martin, Jr., et al

Doc. 0

Case: 09-30159

Document: 00511186054

Page: 1

Date Filed: 07/27/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-30159 S u m m a r y Calendar July 27, 2010 Lyle W. Cayce Clerk

L L O Y D A. RICHARD, P la in t if f -A p p e lla n t v. W I L L Y J MARTIN, JR., Sheriff; HERIA WILLIAMS, Chief Deputy; CLAUDE L O U I S , Detective; JOHN DUNN, Officer; UNIDENTIFIED PARTY; DALE H Y M E L , St. James President; EDWARD SCOTT, Assistant Warden; FARIN S C I O N E A U X , Warden; ROXIE BATISTE, Canteen Manager; HANK STEIB, J a ilo r ; OSBORNE WALLACE, Corporal, 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 Eastern District of Louisiana U S D C No. 2:08-CV-1399

B e fo r e BENAVIDES, PRADO and SOUTHWICK, Circuit Judges. P E R CURIAM:* L lo y d A. Richard appeals the district court's dismissal as frivolous and for fa ilu r e to state a claim, pursuant to 28 U.S.C. § 1915(e)(2) and 42 U.S.C. § 1997e, o f his 42 U.S.C. § 1983 civil rights lawsuit. Review is for plain error because R ic h a r d 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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h a v in g been warned that the failure to object would result in plain error review o f his contentions on appeal. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1 4 1 5 , 1428-29 (5th Cir. 1996) (en banc). To demonstrate plain error, Richard m u s t show a forfeited error that is clear or obvious and affects his substantial r ig h t s . Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). Even if he makes s u c h a showing, this court has the discretion to correct the error but only if it " s e r io u s ly affect[s] the fairness, integrity, or public reputation of judicial p r o c e e d in g s ." Id. (internal quotation marks and citation omitted). R ic h a r d renews his claims of deliberate indifference in connection with the m e d ic a l 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 d is m is s a l of his claim against St. James Parish President Dale Hymel. See Y o h e y v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). Richard devotes much of h is brief to his claim that St. James Parish Sheriff's Office employees at the s c e n e of the van accident conspired to violate state law in various ways, most s p e c ific a lly by failing to report the accident. His claims of state law violations a r e not cognizable. See Johnson v. Dallas Indep. Sch. Dist., 38 F.3d 198, 200 (5 t h Cir. 1994). R ic h a r d 's allegations do not demonstrate that prison officials were d e lib e r a t e ly indifferent to his serious medical needs. First, he has waived any c h a lle n g e to the district court's determination that his symptoms of neck pain, w h ic h 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 a l s o Wagner v. Bay City, Tex., 227 F.3d 316, 324 (5th Cir. 2000). Second,

R ic h a r d 's own pleadings and testimony, along with the medical records, e s t a b lis h that he had routine visits to a medical professional and was given both o v e r -t h e -c o u n t e r and prescription medications to alleviate his symptoms and p a in . Thus, the claim does not give rise to a constitutional violation. See M a y w e a th e r v. Foti, 958 F.2d 91, 91 (5th Cir. 1992). Moreover, Richard has not 2

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d e m o n s t r a t e d that he suffered any injury, much less substantial harm, resulting fr o m the alleged 10-day delay in seeing a nurse and/or the 20-day delay in being t a k e n to a doctor. See Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993). Although Richard now complains that Dr. Poche intentionally mistreated a n d misdiagnosed him, he does not explain in what manner he has been m is d ia g n o s e d or what the correct diagnosis should have been. His disagreement w it h the doctor's treatment, specifically, the failure to provide him with a neck b r a c e , is insufficient to establish a cognizable § 1983 claim. See Varnado v. L y n a u g h , 920 F.2d 320, 321 (5th Cir. 1991). Accordingly, with respect to his d e lib e r a t e indifference claims, Richard has failed to show a clear or obvious error a ffe c t in g his substantial rights. See Puckett, 129 S. Ct. at 1429. Richard renews his claims that the prison officials retaliated against him fo r filing grievances about his medical care and for filing the instant lawsuit by fa ilin g to process his statement of prison account form, which he needed in order t o proceed in forma pauperis (IFP), by denying him needed legal supplies, and b y placing him in solitary confinement. Richard's complaints regarding the nined a y delay in processing his IFP form fail for lack of a retaliatory adverse act b e c a u s e he was granted leave to proceed IFP in the district court despite any d e la y . See Jones v. Greninger, 188 F.3d 322, 324-25 (5th Cir. 1999); see also M o r r is v. Powell, 449 F.3d 682, 684-86 (5th Cir. 2006). The claim regarding the d e n ia l of "indigent supplies" similarly fails for lack of a retaliatory adverse act. Although Richard asserts that, on March 10, 2008, he was denied supplies n e c e s s a r y to his lawsuit in retaliation for having filed the suit, the record d e m o n s t r a t e s that he was able to pursue the instant suit actively, filing n u m e r o u s amendments to his complaint and a response to the defendants' a n s w e r , which filings indicate that his right of access to the court was not im p a ir e d in any way. See Morris, 449 F.3d at 684-86. More problematic is the dismissal of Richard's claim of retaliation in c o n n e c t io n with his placement in solitary confinement after filing a grievance 3

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r e g a r d in g his medical care. The defendants did not provide any explanation or s u b m it any disciplinary records regarding Richard's alleged placement in s o lit a r y confinement and, although the district court acknowledged that the c la im had been raised, it did not specifically address it. On their face, Richard's a lle g a t io n s state a claim for retaliation. See Jones, 188 F.3d at 324-25. He in v o k e d his First Amendment right to file a grievance and asserts that Officer S t e ib and Corporal Wallace retaliated against him for exercising that right by p la c in g 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 m a t t r e s s or toilet and without his having committed any disciplinary infraction ju s tify in g the action. The allegations are sufficient to show causation, a

c h r o n o lo g y of events from which retaliatory motive can plausibly be inferred, a n d a more-than-de-minimis retaliatory adverse act. See Woods v. Smith, 60 F .3 d 1161, 1166 (5th Cir. 1995); see also Morris, 449 F.3d at 687. Richard has t h u s demonstrated plain error which affected his substantial rights resulting fr o m 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 (2 0 0 9 ); Gonzales v. Wyatt, 157 F.3d 1016, 1019 (5th Cir. 1998). This court will e x e r c is e its discretion to correct the error. See Puckett, 129 S. Ct. at 1429. Consequently, although further evidence may demonstrate that the retaliatorysolita r y -c o n fin e m e n t claim is meritless, the district court's dismissal of the claim is vacated, and the claim is remanded for further proceedings. The remainder o f the district court's judgment is affirmed. Richard's motion for the

a p p o in tm e n t of counsel is denied. See Cupit v. Jones, 835 F.2d 82, 86 (5th Cir. 1 9 8 7 ). A F F IR M E D IN PART, VACATED IN PART, AND REMANDED; MOTION F O R THE APPOINTMENT OF COUNSEL DENIED.

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