Calvin Cash v. John Rupert ( 2019 )

Case: 18-40673 Document: 00515120214 Page: 1 Date Filed: 09/17/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-40673 FILED
Summary Calendar September 17, 2019
Lyle W. Cayce
Clerk
CALVIN RAY CASH,
Plaintiff-Appellant
v.
JOHN RUPERT; PAMELA PACE,
Defendants-Appellees
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:17-CV-49
Before SMITH, DENNIS, and DUNCAN, Circuit Judges.
PER CURIAM: *
Calvin Ray Cash, Texas prisoner # 1784450, was assessed a $100 annual
health care services fee following a sick call visit. He filed a grievance
challenging this fee, which defendant Pamela Pace denied because Cash’s
allergies were not considered a “chronic” condition that would be exempt from
the fee. Cash filed a 42 U.S.C. § 1983 complaint against Pace and Warden
John Rupert.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-40673 Document: 00515120214 Page: 2 Date Filed: 09/17/2019
No. 18-40673
The district court granted Pace’s motion to dismiss reasoning that Cash
had not alleged Pace was personally involved in the assessment of the fee, a
prisoner has no protected liberty interest in having a grievance resolved to his
satisfaction, and Pace was entitled to qualified immunity. Rupert’s motion for
summary judgment was granted, and the complaint against him was dismissed
based on conclusions that Rupert was immune from a claim for damages in his
official capacity, that he was not liable under a theory of respondeat superior,
that Cash had not shown a constitutional violation, and that even if Rupert
had been involved in the assessment of the fee, he would be entitled to qualified
immunity because his actions would not have been unreasonable. On appeal,
Cash fails to brief, and thus abandons, any challenge to several of the district
court’s conclusions, including that neither defendant was personally involved
in the assessment of the fee, that Cash does not have a basis for a civil rights
complaint for the denial of his grievance, and that, to the extent that Rupert
was sued in his official capacity, such a claim was barred by the Eleventh
Amendment. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
Instead, Cash argues that the defendants should be liable for the actions
of their subordinates or for their alleged failure to adequately train their
subordinates. Supervisory officials generally are not liable for the actions of
subordinates on a theory respondeat superior or vicarious liability. See Cozzo
v. Tangipahoa Par. Council-President Gov’t, 279 F.3d 273, 286 (5th Cir. 2002);
Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir. 1987). “A supervisory official
may be held liable . . . only if (1) he affirmatively participates in the acts that
cause the constitutional deprivation, or (2) he implements unconstitutional
policies that causally result in the constitutional injury.” Porter v. Epps, 659
F.3d 440, 446 (5th Cir. 2011) (internal quotation marks and citation omitted).
Cash’s arguments fail to meet this standard because the fee is required by state
2
Case: 18-40673 Document: 00515120214 Page: 3 Date Filed: 09/17/2019
No. 18-40673
law and he has not alleged, much less pointed to any evidence, that it results
from any policy implemented by these defendants. See also Morris v.
Livingston, 739 F.3d 740, 746-52 (5th Cir. 2014) (rejecting various
constitutional challenges to health care services fee).
The district court also concluded that Cash had not overcome qualified
immunity. To determine whether qualified immunity applies, this court
engages in a two-part inquiry, “asking: first, whether ‘[t]aken in the light most
favorable to the party asserting the injury, . . . the facts alleged show the
officer’s conduct violated a constitutional right’; and second, ‘whether the right
was clearly established.’” Trammell v. Fruge, 868 F.3d 332, 339 (5th Cir. 2017)
(quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)). Cash has not alleged that
either Pace or Rupert had a role in violating any of his constitutional rights.
Cash’s brief also appears to raise a claim of deliberate indifference to his
medical needs. However, because he did not raise such a claim in the district
court, we decline to consider it. See Leverette v. Louisville Ladder Co., 183 F.3d
339, 342 (5th Cir. 1999). In addition, such a claim likely would be meritless.
A prisoner must establish that prison officials “refused to treat him, ignored
his complaints, intentionally treated him incorrectly, or engaged in any similar
conduct that would clearly evince a wanton disregard for any serious medical
needs.” Domino v. Texas Dep’t of Criminal Justice, 239 F.3d 752, 756 (5th Cir.
2001) (internal quotation marks and citation omitted). Cash does not allege
that he did not receive treatment or medications for his allergies; he argues he
should not have been assessed a fee for the care he received.
Finally, Cash moves this court to allow him to append certain records as
exhibits to his brief. He seeks to include four documents, but they are already
in the record on appeal.
AFFIRMED; MOTION DENIED.
3