Garry Rose v. William Sherman, et al


UNPUBLISHED OPINION FILED. [15-10589 Affirmed] Judge: EGJ, Judge: JES, Judge: JEG. Mandate pull date is 02/10/2017; denying as moot motion for leave to amend complaint filed by Appellant Mr. Garry Rose [8395387-2] [15-10589]

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Case: 15-10589 Document: 00513842550 Page: 1 Date Filed: 01/20/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 15-10589 Summary Calendar FILED January 20, 2017 Lyle W. Cayce Clerk GARRY ROSE, Plaintiff-Appellant v. WILLIAM A. SHERMAN, FSM IV; BRADLEY D. BURGE, Correctional Officer V; KEITH G. GENTRY, Assistant Warden; BEN L. MITCHELL, FSM II; TINA KOVAR, Defendants-Appellees Appeal from the United States District Court for the Northern District of Texas USDC No. 5:12-CV-239 Before JOLLY, SMITH, and GRAVES, Circuit Judges. PER CURIAM: * Garry Rose, Texas prisoner # 1635481, appeals the judgment of the district court dismissing his 42 U.S.C. § 1983 action under Federal Rule of Civil Procedure 12(c). On appeal, Rose pursues only his claim that two of the defendants―William Sherman and Bradley Burge―violated his Eighth Amendment rights by being deliberately indifferent to his safety and were 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Case: 15-10589 Document: 00513842550 Page: 2 Date Filed: 01/20/2017 No. 15-10589 therefore not entitled to qualified immunity. Rose has not briefed or otherwise challenged the district court’s grounds for dismissing the remaining defendants; accordingly, he has abandoned those claims. See Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). “We review a district court’s ruling on a Rule 12(c) motion for judgment on the pleadings de novo,” under the same standard as a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss. Gentilello v. Rege, 627 F.3d 540, 543-44 (5th Cir. 2010) (italics omitted). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citation omitted). “To establish a claim under § 1983, a plaintiff must (1) allege a violation of a right secured by the Constitution or laws of the United States and (2) demonstrate that the alleged deprivation was committed by a person acting under color of state law.” Pratt v. Harris Cnty., Tex., 822 F.3d 174, 180 (5th Cir. 2016) (internal quotation marks and citation omitted). Where, as here, qualified immunity is raised as a defense, there is no liability for actions that do “not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Id. (internal quotation marks and citation omitted). Rose has not demonstrated that Sherman and Burge violated his Eighth Amendment rights by being deliberately indifferent to his safety. Rose injured his fingers with a band saw in March 2011. Sherman and Burge were both aware of the problems with the band saw in late January 2011. Rose informed Sherman at that time that the band saw was missing a piece of its guard blade; Sherman told Burge to fix the band saw several days later; and Burge rigged a repair with a screw and a washer. Authenticated prison records demonstrate that a work order requesting repair was submitted on January 25, 2011, and 2 Case: 15-10589 Document: 00513842550 Page: 3 Date Filed: 01/20/2017 No. 15-10589 that the band saw’s blade was aligned and knob was tightened on February 23, 2011. There is nothing in the record to reflect that Sherman and Burge were aware of any further problems with the band saw after it was repaired in February 2011. Rose does not allege that he told Sherman or Burge of a problem at any other point before he was injured on March 31, 2011, nor does he allege that any other inmate informed the prison staff of a problem with the band saw. While Rose questions the veracity of the records pertaining to the work order and repair, there is no evidence in the record to support this allegation. And while Rose also contends that Sherman and Burge were deliberately indifferent because they were required to regularly inspect the machines pursuant to prison policy, this is negligence at best and insufficient to demonstrate deliberate indifference. See Stewart v. Murphy, 174 F.3d 530, 534 (5th Cir. 1999); Bowie v. Procunier, 808 F.2d 1142, 1143 (5th Cir. 1987) (negligent failure to provide protective goggles to inmate chopping wood was insufficient to demonstrate deliberate indifference). Because Rose did not demonstrate a constitutional violation, Sherman and Burge were entitled to qualified immunity. See Pratt, 822 F.3d at 180-81. AFFIRMED. Rose’s motion for leave to amend the complaint is DENIED AS MOOT. 3

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