Abel Casas v. Brandon Aduddell, et al

Filing

UNPUBLISHED OPINION FILED. [10-10152 Affirmed] Judge: JLW , Judge: ECP , Judge: PRO. Mandate pull date is 01/05/2011 [10-10152]

Abel Casas v. Brandon se: 10-10152 CaAduddell, et al

Document: 00511322266 Page: 1 Date Filed: 12/15/2010

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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 . 10-10152 S u m m a r y Calendar December 15, 2010 Lyle W. Cayce Clerk

A B E L REYES CASAS, P la in t if f -A p p e lla n t v. B R A N D O N ADUDDELL, Sergeant; NFN CHRISTIAN, Sergeant; M.D. S A V E R S , Assistant Warden; JOHN LAVELLE, Doctor; DUSTIM FRAZIER, D octor, 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 Northern District of Texas U S D C No. 2:07-CV-210

B e fo r e WIENER, PRADO, and OWEN, Circuit Judges. P E R CURIAM:* P la in t iff-A p p e lla n t Abel Reyes Casas, Texas prisoner # 1204752, appeals t h e district court's dismissal of his 42 U.S.C. § 1983 complaint arising from a u s e -o f-fo r c e incident that occurred on July 29, 2006. Casas contends that the d is t r ic t court erred in dismissing his claims against defendants Brandon A d u d d e ll and NFN Christian for failure to exhaust administrative remedies. He

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-10152 Document: 00511322266 Page: 2 Date Filed: 12/15/2010 No. 10-10152 a ls o contends that the district court erred in dismissing his claims against d e fe n d a n t s M.D. Savers, John Lavelle, and Dustim Frazier as frivolous or for fa ilu r e to state a claim on which relief can be granted. A prisoner who wishes to file a § 1983 suit for damages against prison o ffic ia ls must exhaust administrative remedies before doing so. 42 U.S.C.

§ 1997e(a); Johnson v. Johnson, 385 F.3d 503, 515 (5th Cir. 2004). We review d e novo a district court's dismissal for failure to exhaust administrative r e m e d ie s . Carbe v. Lappin, 492 F.3d 325, 327 (5th Cir.2007). C a s a s asserts that (1) he exhausted his administrative remedies when he r a is e d the use-of-force incident in the Step 2 grievance that he filed in grievance # 2006181792, citing the Offender Grievance Manual in support of his argument; (2 ) he had no control over the grievance number that the grievance investigator a s s ig n e d to his Step 2 grievance; and (3) the exhaustion requirement discourages p r is o n administrators from responding to Step 2 grievances. Id. Casas did not p r e s e n t either the Offender Grievance Manual or these arguments in the district c o u r t. "An appellate court may not consider new evidence furnished for the first t im e on appeal and may not consider facts which were not before the district c o u r t at the time of the challenged ruling." Theriot v. Parish of Jefferson, 185 F .3 d 477, 491 n.26 (5th Cir. 1999); see also Hannah v. United States, 523 F.3d 5 9 7 , 600 n.1 (5th Cir. 2008) (refusing to consider federal prisoner's deliberate m e d ic a l indifference claim because he failed to raise it in the district court ). We n e e d not consider the arguments Casas raises in his appellate brief. See Theriot, 1 8 5 F.3d at 491 n.26. Casas has thus failed to establish that the district court e r r e d when it determined that he failed to exhaust his administrative remedies a s to defendants Aduddell and Christian. See Carbe, 492 F.3d at 327; Johnson, 3 8 5 F.3d at 515. C a s a s also insists that the district court erroneously dismissed his claims a g a in s t Savers, Lavelle, and Frazier as frivolous. Casas asserts that his claims

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Case: 10-10152 Document: 00511322266 Page: 3 Date Filed: 12/15/2010 No. 10-10152 w e r e not "fantastic or delusional." He alternatively contends that he should h a v e been permitted to amend his complaint. A district court must sua sponte dismiss a prisoner's in forma pauperis § 1983 complaint if the action is malicious or frivolous or fails to state a claim on w h ic h relief can be granted. 28 U.S.C. § 1915(e)(2)(B). When a party fails timely t o file written objections to the magistrate judge's proposed findings, conclusions, a n d recommendation, that party is barred from attacking on appeal the u n o b je c t e d -t o proposed findings and conclusions which the district court a c c e p t e d , except for plain error, "provided that the party has been served with n o tic e that such consequences will result from a failure to object." Douglass v. U n ite d Serv. Auto. Ass'n, 79 F.3d 1415, 1428­29 (5th Cir. 1996) (en banc); see 28 U .S .C . § 636(b)(1). C a s a s was provided the notice required under Douglass in the magistrate ju d g e 's report and recommendation, yet he did not file objections to that report a n d recommendation. We therefore review the district court's dismissal of S a v e r s , Lavelle, and Frazier for plain error. See Douglass, 79 F.3d at 1428-29. To show plain error, the appellant must identify an error that is clear or obvious a n d that affects his substantial rights. Wright v. Ford Motor Co., 508 F.3d 263, 2 7 2 (5th Cir. 2007). When the nature of the claimed error is a question of fact, h o w e v e r , the possibility that such a finding could rise to the level of obvious e r r o r required to meet part of the standard for plain error is remote. Robertson v . Plano City of Texas, 70 F.3d 21, 23 (5th Cir. 1995). C a s a s 's appeal is based on his contention that the magistrate judge's fin d in g s of fact and conclusions of law are erroneous. Casas's argument involves fa c t u a l questions that could have been resolved had he raised them in the d is t r ic t court. Furthermore, Casas's characterization of the medical treatment h e received still does not constitute deliberate medical indifference. See Gobert v . Caldwell, 463 F.3d 339, 346 (5th Cir. 2006). Casas is not entitled to relief on g r o u n d s of plain error. See Robertson, 70 F.3d at 23. 3

Case: 10-10152 Document: 00511322266 Page: 4 Date Filed: 12/15/2010 No. 10-10152 C a s a s alternatively contends that the district court should have granted h im leave to amend his complaint instead of dismissing it. The district court did n o t err in failing sua sponte to grant Casas leave to amend his complaint. See Brewster v. Dretke, 587 F.3d 764, 768 (5th Cir. 2009), cert. denied, 130 S. Ct. 3 3 6 8 (2010) (finding that the record before the district court suggested that the p la in t iff had pleaded his best case and that leave to amend was not necessary b e c a u s e the facts underlying the complaint did not rise to the level of a viable c o n s t it u t io n a l claim). Furthermore, Casas has failed to allege any additional fa c t s that would have overcome the deficiencies found by the district court if he h a d been granted leave to amend. See id. A F F IR M E D .

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