Kenneth Ganther v. Fred Dalton, et al

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UNPUBLISHED OPINION FILED. [09-41220 Affirmed] Judge: RHB , Judge: JLD , Judge: PRO. Mandate pull date is 10/15/2010 [09-41220]

Kenneth Ganther v. Fred Dalton, et al

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Case: 09-41220

Document: 00511243791

Page: 1

Date Filed: 09/24/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-41220 S u m m a r y Calendar September 24, 2010 Lyle W. Cayce Clerk

K E N N E T H IVORY GANTHER, P la in t iff - Appellant v. F R E D DALTON, Captain; J W MOSSBARGER, Unit Warden; J.R. GUYTON, A s s is t a n t Regional Director Region II, D e fe n d a n t s - Appellees

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 3:08-CV-220

B e fo r e BARKSDALE, DENNIS, and OWEN, Circuit Judges. P E R CURIAM:* K e n n e t h Ivory Ganther, Texas inmate #1266740, appeals, pro se, the d is m is s a l of his 42 U.S.C. § 1983 action for failure to state a claim for which r e lie f could be granted, as well as the denial of his motions for judgment as a m a t t e r of law and for summary judgment. He contends defendants were

d e lib e r a t e ly indifferent to his medical needs in violation of the Eighth

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Case: 09-41220

Document: 00511243791 Page: 2 No. 09-41220

Date Filed: 09/24/2010

A m e n d m e n t because they refused to provide him with a new pair of high-top w o r k boots during the period of 10 June 2008 through 16 January 2009. A lt h o u g h Ganther had a medical pass to have his prison-issued boots r e p la c e d with new ones, his request was denied by defendants, pursuant to p r is o n policy that boots be issued only to field workers. Ganther's assignment w a s instead in the kitchen. Our court reviews de novo denials of motions for judgment as a matter of la w , and for summary judgment, and dismissals for failure to state a claim. E.g., A r s e m e n t v. Spinnaker Exploration Co., 400 F.3d 238, 248 (5th Cir. 2005); G u tie r r e z v. City of San Antonio, 139 F.3d 441, 444 (5th Cir. 1998); Black v. W a r r e n , 134 F.3d 732, 733-34 (5th Cir. 1998). The Eighth Amendment protects prisoners from "the wanton and u n n e c e s s a r y infliction" of injury that results in "pain without any penological p u r p o s e " or an "unquestioned and serious deprivation of basic human needs". Rhodes v. Chapman, 452 U.S. 337, 347 (1981) (citing Estelle v. Gamble, 429 U.S. 9 7 , 103 (1976); Hutto v. Finney, 437 U.S. 678 (1978)). A violation of the Eighth A m e n d m e n t occurs only when: there is a deprivation that is "objectively,

`s u ffic ie n t ly serious'", resulting "in the denial of `the minimal civilized measure o f life's necessities,'" . . . and the "prison official . . . [has] a `sufficiently culpable s t a t e of mind'". Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting Wilson v . Seiter, 501 U.S. 294, 297-98 (1991); Rhodes, 452 U.S. at 347). In Farmer, the C o u r t held that a prison official acts with deliberate indifference to inmates' h e a lt h "only if he knows that [they] face a substantial risk of serious harm and d is r e g a r d s that risk by failing to take reasonable measures to abate it". Id. at 8 4 7 . The prisoner must "submit evidence that prison officials refused to treat h im , ignored his complaints, intentionally treated him incorrectly, or engaged in any similar conduct that would clearly evince a wanton disregard for any s e r io u s medical needs". Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006) (in t e r n a l quotations omitted). 2

Case: 09-41220

Document: 00511243791 Page: 3 No. 09-41220

Date Filed: 09/24/2010

G iv e n the prison's policy of issuing boots only to field workers and G a n t h e r 's assignment to the kitchen, defendants' denial of boots was not conduct t h a t was "`causeless[], without restraint, and in reckless disregard'" of Ganther's h e a lt h such that it could be termed wanton in violation of the Eighth A m e n d m e n t . Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985) (quoting 30 A MERICAN AND ENGLISH ENCYCLOPEDIA OF LAW 2-4 (2d ed. 1905) (footnotes o m it t e d )). For purposes of receiving the relief requested in this appeal, Ganther fa ils to show that defendants acted with the knowledge that denial of boots w o u ld pose to him a substantial risk of serious harm. The denial of boots, based u p o n prison policy, was at most negligence, which is not actionable. See Gobert, 4 6 3 F.3d at 346. Because reasonable jurors could have arrived at a verdict contrary to G a n t h e r 's position and because there was a genuine issue of material fact, the d is t r ic t court did not err by dismissing Ganther's motions for judgment as a m a t t e r of law and for summary judgment. See Arsement, 400 F.3d at 248-49; G u tie r r e z , 139 F.3d at 444. Additionally, Ganther's complaint failed to allege fa c t s sufficient to support a conclusion of deliberate indifference. Thus, he fails t o show that the district court erred by dismissing his § 1983 action for failure t o state a claim. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). A F F IR M E D .

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