Barnett v. Foster ( 1998 )


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  •                    UNITED STATES COURT OF APPEALS
                            FOR THE FIFTH CIRCUIT
                             ____________________
    
                                No. 96-50715
                                No. 97-50187
                              Summary Calendar
                            ____________________
    
                            MICHAEL LEE BARNETT,
    
                                                   Plaintiff-Appellant,
    
                                   versus
    
                     TERRY FOSTER, WARDEN; JOY STOUT, LVN;
                D. LANCASTER, MD; RICHARD FEARS; WAYNE SCOTT;
              DAVID KEITH; LANNETTE LINTHICUM; WEATHERBY, LT;
                 PIERCE, CAPT.; HORN, MAJOR; ALVAREZ, WARDEN;
                  RICHARD LOVE, HEALTH ADMIN; JUANITA DORMAN,
                      CLASS SUPV; ANIZAN, CLASS COUNSELOR,
    
                                                   Defendants-Appellees.
    
    
                Appeal from the United States District Court
                      for the Western District of Texas
                             USDC No. P-95-CA-32
    
                            February 26, 1998
    Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
    
    PER CURIAM:*
    
         Michael Lee Barnett, Texas state prisoner No. 680546, appeals
    
    the summary judgment awarded the defendants in his 42 U.S.C. § 1983
    
    action.   We AFFIRM.
    
                                     I.
    
    
    
    
         *
              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    that this opinion should not be published and is not precedent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.
         Barnett filed this action contending primarily that prison
    
    personnel were deliberately indifferent to his serious medical
    
    needs in violation of the Eighth Amendment and retaliated against
    
    him when he asserted his right to medical attention and filed this
    
    action.    The district court granted the summary judgment on the
    
    basis that the defendants were entitled to absolute immunity in
    
    their official, and to qualified immunity in their individual,
    
    capacities. The court dismissed various other claims as frivolous.
    
                                         II.
    
         Of course, we review a summary judgment de novo.         See, e.g.,
    
    Amburgey v. Corhart Refractories Corp. Inc., 
    936 F.2d 805
    , 809 (5th
    
    Cir. 1991).     Such judgment is proper when, viewing the evidence in
    
    the light most favorable to the non-movant, “‘there is no genuine
    
    issue as to any material fact and ... the moving party is entitled
    
    to a judgment as a matter of law.’” Id. (quoting FED. R. CIV. P.
    
    56(c)).
    
                                         A.
    
         Concerning absolute immunity, Barnett does not present any
    
    evidence or explanation regarding why the defendants are not
    
    entitled   to     such   immunity    under   the   Eleventh   Amendment.
    
    Accordingly, Barnett has failed to demonstrate any error.            See
    
    Kentucky v. Graham, 
    473 U.S. 159
    , 169 (1985).
    
                                         B.
    
    
    
    
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          Concerning qualified immunity regarding claims defendants were
    
    deliberately indifferent to Barnett’s serious medical needs and
    
    that they retaliated against him for asserting his rights to
    
    adequate medical care and for filing the instant suit, the well-
    
    known test for such immunity is whether (1) the plaintiff has
    
    alleged a violation of a clearly established constitutional right;
    
    and     (2)    whether        the    defendants’        conduct     was     objectively
    
    unreasonable in the light of the clearly established law at the
    
    time of the incident.          E.g., Rankin v. Klevenhagen, 
    5 F.3d 103
    , 105
    
    (5th Cir. 1993).         The summary judgment evidence reveals that, at
    
    most,    the    defendants          were   negligent,         but   not    deliberately
    
    indifferent, regarding any serious medical needs.                         See Varnado v.
    
    Lynaugh, 
    920 F.2d 320
    , 321 (5th Cir. 1992).                    Barnett’s allegations
    
    of retaliation are conclusional and not supported by the evidence.
    
    See Woods v. Smith, 
    60 F.3d 1161
    , 1166 (5th Cir. 1995).
    
          Because Barnett does not demonstrate a constitutional injury,
    
    we need not address whether the district court properly determined
    
    that the defendants were entitled to qualified immunity.                           See,
    
    e.g., Quives v. Campbell, 
    934 F.2d 668
    , 671 (5th Cir. 1991).
    
    Instead, we      affirm on the alternate basis that Barnett did not
    
    state    a     claim     of     a    violation     of     a     clearly     established
    
    constitutional right.           See Sojurner T. v. Edwards, 
    974 F.2d 27
    , 30
    
    (5th Cir. 1992).
    
                                                C.
    
    
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          Barnett contends that the district court erred by not allowing
    
    him   to   adequately     complete   discovery      before    granting    summary
    
    judgment. Our review demonstrates that the court did not abuse its
    
    discretion in making discovery decisions. See, e.g., Williamson v.
    
    U.S. Dept. of Agriculture, 
    815 F.2d 368
    , 382 (5th Cir. 1987).
    
                                            D.
    
          Barnett also contends that the district court erred by not
    
    appointing him counsel.        The court did not abuse its discretion,
    
    because the instant case is not factually complex, and Barnett’s
    
    pleadings adequately demonstrated his ability to litigate it.                   See
    
    Ulmer v. Chancellor, 
    691 F.2d 209
    , 213 (5th Cir. 1982).
    
                                            E.
    
          Barnett does not challenge the denial of injunctive relief.
    
    Because he has failed to challenge this issue on appeal, it is
    
    deemed abandoned.       See, e.g., Brinkmann v. Dallas County Deputy
    
    Sheriff Abner, 
    813 F.2d 744
    , 748 (5th Cir. 1987).
    
                                            F.
    
          Likewise, the following issues presented by this appeal are
    
    not adequately argued, and are thus abandoned, id.; see also Al-
    
    Ra’id v.    Ingle,   
    69 F.3d 28
    ,   31   (5th   Cir.     1995):      that   the
    
    defendants have arbitrarily punished certain inmates by changing
    
    custody levels, earning classes and taken away good time credits
    
    thus creating separate classes of inmates; that the district court
    
    failed to liberally construe Barnett’s complaint; and that the
    
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    Texas Department of Criminal Justice should have been a separate
    
    defendant.
    
                                   III.
    
         Accordingly, Barnett’s requests for relief in the form of 1)
    
    allowing him to amend his complaint; 2) allowing him to complete
    
    discovery; 3) granting a restraining order and injunctive relief
    
    against the defendants; 4) ordering TDCJ to amend his prison record
    
    and time-earning status; 5) remanding this case to the Eastern
    
    District; and (6) his request for appointment of counsel on appeal
    
    are DENIED.
    
         In the light of our holding, the defendants motions to dismiss
    
    the appeal are DENIED as unnecessary.
    
         Accordingly, the judgment is AFFIRMED.
    
    
                   JUDGMENT AFFIRMED; MOTIONS TO DISMISS DENIED;
                                         REQUESTED RELIEF DENIED
    
    
    
    
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