Kelly v. Scott ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-41294
Summary Calendar
PAUL DOUGLAS KELLY,
Plaintiff-Appellant,
versus
WAYNE SCOTT, Etc.; ET AL.,
Defendants,
WAYNE SCOTT, Executive Director, Texas Department of
Criminal Justice; JIM SHAW, Regional Director, Texas
Department of Criminal Justice, Institutional Division;
JAMES G. McGEE, Plant Manager, Meat Packing Plant;
BOBBY G. BRITT, Plant Maintenance, Meat Packing Plant;
MAURIS WAYNE ENGLEDOW, Industrial Supervisor; DAVID C.
BREWSTER, Industrial Supervisor,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:99-CV-267
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December 13, 2000
Before DAVIS, JONES, and DeMOSS, Circuit Judges.
PER CURIAM:*
Paul Douglas Kelly, Texas prisoner #711287, appeals from the
dismissal of his 42 U.S.C. § 1983 complaint as frivolous and for
failure to state a claim. Kelly contends that the magistrate
judge erred by dismissing his complaint without requiring the
defendants to testify about their normal operating procedures;
*
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that this opinion should not be published and is not precedent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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that the magistrate judge erred by dismissing his claims
regarding deliberate indifference to his work safety; that the
magistrate judge erred by holding that the delay in obtaining
medical care for his foot did not constitute deliberate
indifference; that the magistrate judge erred by not appointing
counsel to represent him; that the magistrate judge failed to
construe his complaint liberally; and that the magistrate judge
failed to question those present at his Spears v. McCotter, 766
F.2d 179 (5th Cir. 1985), hearing sufficiently to determine
whether his complaint was frivolous or failed to state a claim.
Kelly does not brief whether the magistrate judge erred by
holding that Executive Director Wayne Scott and Regional Director
Jim Shaw could not be held vicariously liable. He has failed to
brief the dispositive issue for appeal regarding Scott and Shaw.
Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744,
748 (5th Cir. 1987). The dismissal of Scott and Shaw is
AFFIRMED.
Regarding Kelly’s claim against Meat Packing Plant Manager
James G. McGee for the work accident, Kelly alleged in his
complaint that he sought to hold McGee liable for failing to
ensure a safe working environment and failing to ensure quality-
assurance inspections; he did not allege any specific facts in
his complaint or his Spears testimony relevant to his work-
accident claim against McGee. Conclusional allegations are
insufficient to give rise to an action under 42 U.S.C. § 1983.
Macias v. Raul A. (Unknown), Badge No. 153, 23 F.3d 94, 99 (5th
No. 99-41294
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Cir. 1994). The dismissal of the workplace-safety claim against
McGee is AFFIRMED.
Kelly alleged in his complaint and his Spears hearing
testimony that he had experienced an accident involving the angle
irons in June 1998; that he had reported that accident to
Industrial Supervisor Mauris Wayne Engledow and Industrial
Supervisor David C. Brewster; that Engledow and Brewster had
indicated that the problem would be addressed; and that Plant
Maintenance Manager Bobby G. Britt would have been notified by
Engledow and Brewster in the normal course of events. If Kelly’s
allegations are true, the problem with the protruding angle irons
was not fixed by August, when Kelly experienced the accident that
crushed and severely lacerated his foot. Nor was Kelly provided
with safety instruction relevant to his job or instruction
regarding the particular forklift he alleged he was driving on
the day of the second accident. Kelly has alleged facts giving
rise to a nonfrivolous claim that Engledow, Brewster, and Britt
were deliberately indifferent to his work safety. See Jackson v.
Cain, 864 F.2d 1235, 1245 (5th Cir. 1989). The dismissal of
Kelly’s work-accident claim as to Engledow, Brewster, and Britt
as frivolous and for failure to state a claim therefore was
erroneous. If Kelly can prove, as he has alleged, that these
defendants knew of a substantial risk of serious harm and
disregarded that risk by failing to take reasonable measures to
abate it, then he can recover. See Farmer v. Brennan, 511 U.S.
825, 847 (1994). The dismissal of the suit as to Engledow,
Brewster, and Britt with regard to the claim of deliberate
No. 99-41294
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indifference to workplace safety is REVERSED, and this claim is
REMANDED for further proceedings.
Neither Kelly’s complaint nor his Spears hearing testimony
suggested that the one-hour delay resulted in substantial harm to
Kelly. See Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir.
1993). Moreover, the complaint and the Spears treatment
indicated that McGee was negligent for failing to call for an
ambulance. Such negligence does not give rise to an Eighth
Amendment violation. Varnado v. Lynaugh, 920 F.2d 320, 321 (5th
Cir. 1991). The magistrate judge did not err by dismissing
Kelly’s medical-treatment claim as frivolous and for failure to
state a claim. The dismissal of the medical-treatment claim
against McGee is AFFIRMED.
There is no automatic right to appointment of counsel in a
civil rights case. Ulmer v. Chancellor, 691 F.2d 209, 212 (5th
Cir. 1982). The district court has the discretion to appoint
counsel if doing so would advance the proper administration of
justice. Id. Kelly did not request counsel in the district
court, and the correct outcome in Kelly’s case could have been
determined from the pleadings and the Spears testimony. The
magistrate judge did not abuse her discretion in failing to
appoint counsel sua sponte. The record indicates that the
magistrate judge construed Kelly’s complaint accurately and that
she conducted the Spears hearing in a manner designed to flesh
out Kelly’s claims. See Spears, 766 F.2d at 181-82. Kelly’s
procedural contentions therefore are unavailing.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.