Laveal McGhee v. Emmitt Sparkman , 583 F. App'x 305 ( 2014 )

Case: 13-60910 Document: 00512804148 Page: 1 Date Filed: 10/15/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-60910 October 15, 2014
Lyle W. Cayce
LAVEAL MCGHEE, Clerk
Plaintiff-Appellant
v.
SUPERINTENDENT EMMITT L. SPARKMAN; E.R. MOODY; ALBERT
FIRST; VICTORIA MCFARLAND,
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 4:10-CV-139
Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM: *
Laveal McGhee, Mississippi prisoner # 37135, filed a civil rights action
complaining that he was compelled to do work in the prison processing plant
that was not consistent with his Class III medical classification. He named as
defendants Emmitt Sparkman, the Superintendent of the Mississippi
Department of Corrections; E.R. Moody; Lieutenant Albert First; and
corrections officers Victoria McFarland and Eric Ford, and he requested
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-60910 Document: 00512804148 Page: 2 Date Filed: 10/15/2014
No. 13-60910
injunctive relief and an award of punitive and compensatory damages. After
the claims against Sparkman, Moody, and Ford were dismissed, the district
court granted the motion for summary judgment of First and McFarland, and
it decertified McGhee’s in forma pauperis (IFP) status. McGhee has applied to
this court for leave to proceed IFP in this appeal. We have construed McGhee’s
motion for leave to proceed IFP as a challenge to the district court’s
determination that his appeal has not been brought in good faith. See Baugh
v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
“[I]n certain circumstances, prison work conditions may amount to cruel
and unusual punishment.” Jackson v. Cain, 864 F.2d 1235, 1245 (5th Cir.
1989). When the type of work to which the prisoner is assigned has
significantly worsened a prisoner’s medically serious pathological condition, an
Eighth Amendment violation is shown when the prisoner demonstrates that
the work was “assigned with the knowledge of the condition and that it will be
worsened thereby.” Id. at 1246 (internal quotation marks and quotation marks
omitted). The official’s behavior must rise above mere negligence. Id.McGhee asserts that Lieutenant First was informed of his medical
classification and that First and McFarland knew that McGhee’s Medical
Classification III made it improper for him to work in the processing plant. By
ordering him to work in the plant, McGhee contends, First caused him to suffer
an asthma attack that could have caused his death. He complains of the
district court’s failure to order injunctive relief.
Although the summary judgment evidence shows that First had reason
to know of McGhee’s Class III status, it does not reflect that either First or
McFarland knew that the medical conditions that resulted in that
classification would be significantly worsened by requiring McGhee to work in
the processing plant. See id. Nor has McGhee presented evidence showing
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Case: 13-60910 Document: 00512804148 Page: 3 Date Filed: 10/15/2014
No. 13-60910
that those medical conditions actually were significantly worsened as a result
of the work assignment. See id. McGhee raises no issue with respect to the
dismissal of his claims against Sparkman, Moody, or Ford. Accordingly, those
claims are abandoned. See Brinkmann v. Dallas Cnty. Dep. Sheriff Abner, 813
F.2d 744, 748 (5th Cir. 1987). Because McGhee’s claims fail on the merits, he
is not entitled to injunctive relief. See VRC LLC v. City of Dallas, 460 F.3d
607, 611 (5th Cir. 2006). The motion for leave to proceed IFP is DENIED, and
the appeal is DISMISSED. See Baugh, 117 F.3d at 202; Howard, 707 F.2d at
220; 5TH CIR. R. 42.2.
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