John Hawkins v. Marlin Gusman , 597 F. App'x 255 ( 2015 )

Case: 14-30393 Document: 00512968178 Page: 1 Date Filed: 03/13/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-30393
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
March 13, 2015
JOHN HAWKINS,
Lyle W. Cayce
Clerk
Plaintiff-Appellant
v.
MARLIN N. GUSMAN, Sheriff; LIEUTENANT ROSS; CYNTHIA PARK,
Doctor; G. GOLDEN, Deputy; WARDEN OF HUNT RECEPTION AND
DIAGNOSTIC CENTER,
Defendants-Appellees
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:13-CV-256
Before JONES, BENAVIDES, and GRAVES, Circuit Judges.
PER CURIAM: *
John Hawkins, Louisiana prisoner # 115911, filed a 42 U.S.C. § 1983
complaint against Orleans Parish Sheriff Marlin N. Gusman, and two Orleans
Parish Prison (OPP) employees: Lieutenant Ross and Deputy G. Golden. He
also named Cynthia Park, a nurse, and an unidentified warden at the Elayn
Hunt Correctional Center. He alleged constitutional violations stemming from
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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No. 14-30393
an injury he received while incarcerated at the OPP and his medical treatment
while housed at OPP and later, following his transfer, at Hunt Correctional
Center. Hawkins alleged that at the time of the injury, he was stripping floors,
when he slipped and fell, striking his knee. Hawkins alleged that Golden
instructed him to mix bleach with the stripping solution, which Hawkins
contended should not have been done, and that Ross, Golden’s supervisor, did
nothing to stop Ross from creating a hazardous workplace. Hawkins alleged
that Gusman, Ross, and Golden were responsible for the fall and that Gusman
provided inadequate medical care.
The claims against Park and the unidentified warden were dismissed
without prejudice for failure to state a claim because Hawkins had failed to
plead any facts implicating either defendant. Hawkins does not address the
dismissals. Accordingly, he is deemed to have abandoned the issues on appeal.
See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). The district court
granted the remaining OPP defendants’ motion for summary judgment and
dismissed the complaint.
We review a grant of summary judgment de novo, using the same
standard as that employed by the district court. Carnaby v. City of Houston,
636 F.3d 183, 187 (5th Cir. 2011). Summary judgment is appropriate “if the
movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). If
the moving party establishes this, the burden shifts to the nonmovant to set
forth specific evidence to support his claims. Duffie v. United States, 600 F.3d
362, 371 (5th Cir. 2010). However, conclusory “allegations and denials,
speculation, improbable inferences, unsubstantiated assertions, and legalistic
argumentation do not adequately substitute for specific facts showing a
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No. 14-30393
genuine issue for trial.” TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d
754, 759 (5th Cir. 2002).
As an initial matter, Hawkins raises for the first time on appeal that the
OPP defendants were liable for failing to train and supervise the prison staff
and that Gusman was liable for transferring him to the Hunt Correctional
Center. These newly raised claims will not be considered. See Stewart Glass
& Mirror, Inc. v. U.S. Auto Glass Discount Ctrs., Inc., 200 F.3d 307, 316-17 (5th
Cir. 2000).
To the extent that Hawkins sought to hold the OPP defendants liable in
their official capacities, Hawkins failed to identify any policy or custom that
served to violate his constitutional rights and failed to show that any policy or
custom was the cause in fact or moving force behind a constitutional violation.
See, e.g., Spiller v. City of Texas City, Police Dep’t, 130 F.3d 162, 167 (5th Cir.
1997). With regard to any individual capacity claims, Hawkins had to show
that the OPP defendants were either personally involved in the acts causing
the deprivation of his constitutional rights or that there was a causal
connection between an act of the OPP defendants and the constitutional
violation sought to be redressed. See Lozano v. Smith, 718 F.2d 756, 768 (5th
Cir. 1983).
In the district court, Hawkins did not allege that Gusman had any
personal involvement in, or even had knowledge of, any acts or omission
resulting in his injuries and subsequent medical care. Hawkins’s failure to
allege the requisite personal involvement on the part of Gusman defeats this
claim. See id. Hawkins’s attempt to hold Gusman liable under the theory of
vicarious liability likewise fails. See Thompkins v. Belt, 828 F.2d 298, 304 (5th
Cir. 1987).
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No. 14-30393
Hawkins fails to address the district court’s determination that the
individual capacity claims against Ross and Golden arising from the slip and
fall were not actionable as a constitutional violation under § 1983, but rather
were grounded in state tort law as an ordinary slip and fall accident. Because
Hawkins has not addressed the basis for the district court’s dismissal of the
claims against Ross and Golden, he has abandoned any challenge thereto. See
Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999). The judgment of the
district court is AFFIRMED.
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