Raspberry v. Johnson ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40591
Summary Calendar
PERCY W. RASPBERRY,
Plaintiff-Appellant,
versus
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION;
ROBERT HERRERA, Assistant Warden, Michael Unit;
EDWIN KEITH ATCHISON, Lieutenant, Michael Unit;
JAMES D. TIPPEN, Correctional Officer III,
Michael Unit; WILLIAM DANIELS, Captain/Major,
Texas Department of Criminal Justice - Institutional
Division; WILLIAM R. WATTS, Captain, Michael Unit;
VERNON ALLEN; LEON GUINN; CATHERINE GAIL MAYES,
Defendants-Appellees.
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Appeals from the United States District Court
for the Eastern District of Texas
USDC No. 6:99-CV-185
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November 29, 2001
Before DAVIS, BENAVIDES and STEWART, Circuit Judges.
PER CURIAM:*
Percy Raspberry, Texas prisoner # 423151, appeals the
district court’s dismissal of his 42 U.S.C. § 1983 complaint.
Raspberry alleged that he was a victim of excessive use of force
and related constitutional violations that arose out of a “chow
hall” incident and an ensuing prison riot. Several defendants,
*
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that this opinion should not be published and is not precedent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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and all claims except for the excessive-force claim, were
dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)&(ii). The
magistrate judge conducted a 28 U.S.C. § 636(b)(1)(B) trial on
the merits for Raspberry’s excessive-force. The excessive-force
claim was dismissed with prejudice by the district court.
Raspberry argues that the magistrate judge erred when she
conducted a bench trial despite a timely jury demand. He also
asserts that he did not consent to the magistrate judge
conducting the proceedings. Raspberry did not serve the
defendants with his jury demand as required by Fed. R. Civ. P.
38(b). Consequently, he waived his right to a jury trial. See
Fed. R. Civ. P. 38(d); See Houston N. Hosp. Prop. v. Telco
Leasing, Inc., 688 F.2d 408, 410 (5th Cir. 1982). Contrary to
Raspberry’s assertion, the magistrate judge was not required to
obtain Raspberry’s consent to conduct a 28 U.S.C. § 636(b)(1)(B)
hearing. See Sockwell v. Phelps, 906 F.2d 1096, 1097 (5th Cir.
1990).
Raspberry argues that the district court erred when it
dismissed the claim that defendant Gary Johnson should be held
liable for injuries caused by prison employees because Johnson
failed to supervise employees and failed to respond to and
investigate Raspberry’s complaints of excessive force. Recovery
pursuant to a respondeat-superior or vicarious-liability theory
is not available under § 1983. Baskin v. Parker, 602 F.2d 1205,
1207-08 (5th Cir. 1979). Moreover, the alleged failure to
investigate complaints and to take action in response to them
No. 00-40591
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does not provide a basis for a civil rights action. See Oliver
v. Collins, 904 F.2d 278, 281 (5th Cir. 1990).
Raspberry contends that the district court erred when it
denied his excessive-force claim because it should have concluded
that there existed a genuine issue of material fact. Raspberry
is confused about the procedural posture of his case. It was not
dismissed on a summary-judgment motion. Rather, Raspberry’s
excessive-force claim proceeded to a trial on the merits. He has
failed to address whether the district court’s findings of fact
were clearly erroneous, nor has he identified a legal error
committed by the district court during the bench trial. See
Canal Barge Co., Inc. v. Torco Oil Co., 220 F.2d 370, 375 (5th
Cir. 2000).
Raspberry contends that he was denied medical treatment for
his injured hand and bruised head. He failed to allege either a
serious medical condition or deliberate indifference to a serious
medical condition. Domino v. Texas Dep’t of Criminal Justice,
239 F.3d 752, 754 (5th Cir. 2001). He concedes that the injuries
healed on their own, he did not suffer any broken bones in his
hand, and he was examined by medical personnel for his injuries.
Raspberry argues that he was subjected to retaliation and
racial epithets during an interrogation. His retaliation
argument on appeal is really a part of his excessive-force claim.
Standing alone, his allegations of racial epithets fails to state
an equal-protection claim. See Williams v. Bramer, 180 F.3d 699,
706 (5th Cir. 1999)(holding that mere verbal harassment,
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including use of racially derogatory terms, inadequate to state
equal-protection claim).
Raspberry asserts that the prison’s Internal Affairs
Division failed to investigate the use of force incident as
required by state law and prison regulations. His assertion that
the Internal Affairs Division failed to follow established prison
policies is inadequate to state a cause of action. See Edwards
v. Johnson, 209 F.3d 772, 779 (5th Cir. 2000). Likewise, his
allegations that the Internal Affairs Division failed to conduct
an investigation is insufficient to state a 42 U.S.C. § 1983
claim. See Oliver, 904 F.2d at 281.
Raspberry has failed to demonstrate that the district court
erred when it denied his excessive-force claim on the merits.
The district court properly dismissed Raspberry’s remaining
constitutional claims as either frivolous or for failure to state
a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)&(ii).
Accordingly, the district court’s judgment is AFFIRMED.