Tony Reynolds v. Christopher Epps , 442 F. App'x 170 ( 2011 )

Case: 10-60681 Document: 00511612683 Page: 1 Date Filed: 09/26/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 26, 2011
No. 10-60681
Summary Calendar Lyle W. Cayce
Clerk
TONY KEITH REYNOLDS,
Plaintiff-Appellant
v.
CHRISTOPHER B. EPPS, Commissioner; RUFUS BURKS, JR.; BRIAN
LADNER, Associate Warden,
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:09-CV-36
Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
Tony Keith Reynolds, Mississippi prisoner # 34629, challenges the
dismissal of his 42 U.S.C. § 1983 lawsuit following a bench trial, renewing his
claims that he was assaulted by officers and denied medical care following the
assault, that he was denied medical care for dental and back problems, that his
conditions of confinement during lockdown following his release from suicide
watch violated the Eighth Amendment, that his property was illegally
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-60681
confiscated, and that he was denied access to the courts. He also argues, for the
first time on appeal, that he was retaliated against for speaking on television in
defense of a black inmate on death row and that his rights were violated when
he was charged multiple times for the same medical services. These newly
raised claims will not be considered. See Shanks v. AlliedSignal, Inc., 169 F.3d
988, 993 n.6 (5th Cir. 1999); Burch v. Coca-Cola Co., 119 F.3d 305, 319 (5th Cir.
1997).
For the first time in his reply brief, Reynolds seeks to raise claims that the
district court erred in refusing to allow him to call witnesses, in denying his
motion for a default judgment and/or for a temporary restraining order, and in
dismissing his claims of gender and racial discrimination; he also seeks to raise
new claims that he has recently been denied treatment for a leg injury and has
been denied certain specific medications and supplies. He further attempts to
renew, for the first time in his reply brief, the claims that the prison where he
is housed is overcrowded and unsanitary. Because Reynolds did not raise these
arguments in his initial appellate brief, this court will not consider them. See
United States v. Jimenez, 509 F.3d 682, 693 n.10 (5th Cir. 2007); Cinel v.
Connick, 15 F.3d 1338, 1345 (5th Cir. 1994); see also United States v. Prince, 868
F.2d 1379, 1386 (5th Cir. 1989). Reynolds has additionally abandoned by failing
to brief any argument renewing his claims that the prison had inadequate
disciplinary procedures and provided inadequate protection from other inmates.
See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
Reynolds’s arguments regarding the alleged assault and related denial of
medical care are conclusional, as are his allegations regarding the denial of
treatment for back pain, the conditions he was subjected to in lockdown
following his release from suicide watch, and the confiscation of his property.
Without the trial transcript to aid in this court’s review, no deficiencies in the
district court’s ruling can be discerned. Reynolds has not provided a copy of the
trial transcript and has instead affirmatively stated that a trial transcript is not
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No. 10-60681
necessary. Because he has failed to provide the trial transcript, the claims fail.
See FED. R. APP. P. 10(b)(2); see also Alizadeh v. Safeways Stores, Inc., 910 F.2d
234, 237 (5th Cir. 1990).
In connection with his dental-care claim, Reynolds does not deny that he
received dental treatment but complains that he was never seen by an oral
surgeon. His disagreement with the treatment he received is not actionable
under § 1983, and the claim was properly dismissed. See Gobert v. Caldwell, 463
F.3d 339, 346 (5th Cir. 2006); Domino v. Texas Dep’t of Criminal Justice, 239
F.3d 752, 756 (5th Cir. 2001). His denial-of-access claim was likewise properly
dismissed because, even if he missed unspecified filing deadlines, he has neither
asserted nor demonstrated that he has been prevented from pursuing a
nonfrivolous legal claim as a result. See Lewis v. Casey, 518 U.S. 343, 351-52
(1996).
The district court’s judgment is AFFIRMED.
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