Valdez v. Corrections Corp Am ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-31271
Summary Calendar
VICTOR VALDEZ,
Plaintiff-Appellant,
versus
CORRECTIONS CORP. OF AMERICA; WINN
CORRECTIONAL CENTER, Administration/
Security; MICKEY HUBERT; KATHY COLE;
JAIME BARRERO; LEO DAVIS,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 99-CV-1680
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June 5, 2001
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Victor Valdez, Louisiana prisoner # 313987, appeals the
summary judgment in favor of the defendants in his civil rights
action filed and adjudicated pursuant to 42 U.S.C. § 1983.
Because Valdez did not object to the magistrate judge’s report in
the district court, appellate review is for plain error.
Douglass v. United Serv. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th
Cir. 1996)(en banc).
*
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that this opinion should not be published and is not precedent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.
No. 00-31271
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The district court did not commit plain error in granting
summary judgment in favor of the defendants. Valdez’s assertions
against Dr. Jaime Borrero are that the doctor failed to comply
with the orders and diagnoses made by a doctor who had treated
Valdez at Louisiana State University Medical Center. These
contentions would at most constitute a claim of medical
malpractice, which is insufficient to state a claim under 42
U.S.C. § 1983. See Estelle v. Gamble, 429 U.S. 97, 106 (1976).
On appeal, Valdez contends that Kathy Cole was Borrero’s
supervisor in the infirmary. A defendant cannot be held liable
under 42 U.S.C. § 1983 on a theory of vicarious liability. See
Becerra v. Asher, 105 F.3d 1042, 1045 (5th Cir. 1997). Although
Valdez asserted in the district court that Cole’s actual
treatment of him resulted in deliberate indifference, he has
failed to renew those assertions on appeal and those claims are
deemed abandoned. Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir.
1994). For the first time in his reply brief, Valdez asserts
that Cole ordered another doctor to examine Valdez and return him
to active duty. Issues raised for the first time in a reply
brief will not be reviewed on appeal. See United States v.
Prince, 868 F.2d 1379, 1386 (5th Cir. 1989).
Valdez contends that the field line supervisor, Officer
LeBaron, forced the inmates to work too closely together and
failed to provide them with safety equipment. The district court
dismissed without prejudice Valdez’s claims against LeBaron and
against Leo Davis, the inmate who injured Valdez, because they
were not properly served. Valdez does not challenge these
No. 00-31271
-3-
dismissals on appeal, and this court “will not raise and discuss
legal issues that [Valdez] has failed to assert.” Brinkmann v.
Abner, 813 F.2d 744, 748 (5th Cir. 1987).
Valdez maintains that because warden Mickey Hubert
supervised the other defendants, he should be held liable for the
violations of his civil rights. Supervisory liability is not
cognizable in 42 U.S.C. § 1983. Becerra, 105 F.3d at 1045.
Valdez has failed to allege a policy or practice of the
Corrections Corporation of America, enacted by Hubert as a
policymaker, that is unconstitutional. See Monell v. Dep’t of
Soc. Servs., 436 U.S. 658, 694 (1978)(municipal corporation
liability); City of Canton, Ohio v. Harris, 489 U.S. 378, 389
(1989)(same). Because Valdez has failed to show plain error, the
district court’s grant of summary judgment is AFFIRMED.
Valdez has filed a motion for leave to file supplemental
pleadings and a supplemental brief. Review of this document
reveals that it is in fact a reply brief. Therefore, Valdez’s
motion for leave to file a supplemental pleading is DENIED AS
UNNECESSARY, and his reply brief is FILED.
AFFIRMED; MOTION DENIED AS UNNECESSARY; REPLY BRIEF FILED.