Rodney Carter v. Sid J. Champion

Filing

UNPUBLISHED OPINION FILED. [09-60776 Affirmed ] Judge: HRD , Judge: CES , Judge: JWE Mandate pull date is 11/19/2010 [09-60776]

Rodney Carter v. Sid J. se: 09-60776 Ca Champion

Document: 00511278877 Page: 1 Date Filed: 10/29/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-60776 S u m m a r y Calendar October 29, 2010 Lyle W. Cayce Clerk

R O D N E Y DELEVICCIHO CARTER, P la in t if f -A p p e lla n t v. G A R Y REACH, Clinton Police Department Officer, D e fe n d a n t -A p p e lle e

A p p e a l from the United States District Court fo r the Southern District of Mississippi U S D C No. 3:07-CV-145

B e fo r e DEMOSS, STEWART, and ELROD, Circuit Judges. P E R CURIAM:* R o d n e y Delevicciho Carter appeals the summary judgment dismissing his 4 2 U.S.C. § 1983 action against Gary Reach. We affirm. C a r t e r was struck by a passing automobile as he struggled in the street w it h a shopkeeper whose store he had tried to rob. Reach, a Clinton,

M is s is s ip p i, police officer, arrived on the scene and arrested Carter for a t t e m p t e d robbery. Carter claimed that he was unconscious when arrested, that

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-60776 Document: 00511278877 Page: 2 Date Filed: 10/29/2010 No. 09-60776 h e needed medical care, and that Reach was deliberately indifferent to his m e d ic a l needs. W e review a grant of summary judgment de novo. Cousin v. Small, 325 F .3 d 627, 637 (5th Cir. 2003). Summary judgment is proper "if the pleadings, t h e discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to ju d g m e n t as a matter of law." FED. R. CIV. P. 56(c)(2). If the moving party m e e t s the initial burden of showing that there is no genuine issue, the burden s h ift s to the nonmovant to set forth specific facts showing the existence of a g e n u in e issue for trial. FED. R. CIV. P. 56(e). T h e Due Process Clause of the Fourteenth Amendment guarantees that a person detained by the police is entitled to medical care. Jacobs v. West F e li c i a n a Sheriff's Dep't, 228 F.3d 388, 393 (5th Cir. 2000)). Violation of that r ig h t by deliberate indifference to serious illness or injury is actionable under § 1983. Id. Deliberate indifference encompasses only "unnecessary and wanton in flic t io n of pain" or acts "repugnant to the conscience of mankind." Estelle v. G a m b le , 429 U.S. 97, 105-06 (1976) (internal quotation marks omitted). M u n ic ip a l employees may be entitled to qualified immunity for claims b r o u g h t against them in their individual or personal capacities. Turner v. H o u m a Mun. Fire & Police Civ. Serv. Bd., 229 F.3d 478, 483 (5th Cir. 2000). To d e fe a t a claim of qualified immunity, a petitioner must state a claim for a v io la t io n of a constitutional right, show that the constitutional right was e s t a b lis h e d at the time of the actions at issue, and demonstrate that defendant's c o n d u c t was objectively unreasonable in light of the legal rules clearly e s t a b lis h e d when the defendant acted. Thomas v. City of Dallas, 175 F.3d 358, 3 6 3 -6 4 (5th Cir. 1999). Conclusory allegations of wrongdoing do not satisfy these r e q u ir e m e n t s . Geter v. Fortenberry, 849 F.2d 1550, 1553 (5th Cir. 1988). C a r t e r 's allegations are bald conclusions that do not state a claim of a c o n s t it u t io n a l deprivation. See id. There is no evidence that Reach's omitting 2

Case: 09-60776 Document: 00511278877 Page: 3 Date Filed: 10/29/2010 No. 09-60776 t o provide medical attention to Carter in the scant half-hour they were together r e s u l t e d in the injuries that Carter claims to have suffered. Although the d is t r ic t court stated that Carter had presented testimony on this point, that t e s t im o n y is not in the appellate record because Carter failed to provide a t r a n s c r ip t of his Spears hearing. See Spears v. McCotter, 766 F.2d 179 (5th Cir. 1 9 8 5 ). An appellant who maintains that a district court determination is

c o n t r a r y to or unsupported by the evidence must include in the appellate record a transcript of all proof relevant to that determination. Richardson v. Henry, 9 0 2 F.2d 414, 415-16 (5th Cir. 1990). Additionally, the other materials m e n tio n e d by the district court are not probative of serious injury. See Estelle, 4 2 9 U.S. at 105. Thus, they do not create any genuine issue of material fact c o n c e r n in g the first prong of qualified immunity analysis, i.e., whether a c o n s t it u t io n a l violation occurred. See Thomas, 175 F.3d at 363-64.

Consequently, summary judgment in favor of Reach on the individual capacity c la im was proper. See FED. R. CIV. P. 56(c)(2). Carter's official capacity claim fails as well. Carter's failure to identify any e r r o r in the district court's analysis on this issue constitutes a failure to appeal t h a t ruling. See Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 7 4 8 (5th Cir. 1987); Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). A F F IR M E D .

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