Haddix v. Kerss , 203 F. App'x 551 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 9, 2006
Charles R. Fulbruge III
Clerk
No. 04-41636
Summary Calendar
ROBERT HADDIX, JR.,
Plaintiff-Appellant,
versus
THOMAS KERSS, Sheriff, Nacogdoches County; LELAND HOUSE, Jailer;
GENE GILCREASE, Administrator, Nacogdoches County Sheriff’s
Dept.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:04-CV-105
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Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Robert Haddix, Jr., a former pretrial detainee at the
Nacogdoches County Jail, appeals the dismissal of his 42 U.S.C.
§ 1983 complaint as frivolous and for failure to state a claim
upon which relief may be granted under 28 U.S.C. § 1915(e)(2)(B).
The parties consented to proceed before a magistrate judge.
As an initial matter, we conclude that, contrary to the
appellees’ contention, Haddix’s notice of appeal was timely filed
from the magistrate judge’s order of dismissal. Haddix filed a
*
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this opinion should not be published and is not precedent except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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motion for reconsideration on November 10, 2004, 10 countable
days after the entry of judgment. See FED. R. CIV. P. 6(a). The
30-day time limit for filing a notice of appeal did not begin to
run until the disposition of this motion on November 16, 2004.
See FED. R. CIV. P. 4(a)(4)(A). Haddix’s notice of appeal, filed
on November 29, 2004, was timely.
Haddix first argues that the magistrate judge who conducted
the evidentiary hearing made various errors during the hearing,
including: (1) considering jail records that allegedly were
altered and lacked a certificate of correctness; (2) allowing
only the defendants to present evidence and witnesses; and (3)
engaging in ex parte communication with defense counsel. If the
magistrate judge erred, such errors were harmless because Haddix
has failed to state a claim upon which relief may be granted.
We review Haddix’s claims de novo. See Geiger v. Jowers,
404 F.3d 371, 373 (5th Cir. 2005). We accept as true all the
allegations of the complaint, considering them in the light most
favorable to the plaintiff. Ashe v. Corley, 992 F.2d 540, 544
(5th Cir. 1993).
“The constitutional rights of a pretrial detainee . . . flow
from both the procedural and substantive due process guarantees
of the Fourteenth Amendment.” Hare v. City of Corinth, 74 F.3d
633, 639 (5th Cir. 1996) (en banc). Claims based upon a jail
official’s “episodic acts or omissions” are reviewed under the
standard of subjective deliberate indifference enunciated in
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Farmer v. Brennan, 511 U.S. 825 (1994). “[A] prison official may
be held liable under the Eighth Amendment for denying humane
conditions of confinement only if he knows that inmates face a
substantial risk of serious harm and disregards that risk by
failing to take reasonable measures to abate it.” Farmer, 511
U.S. at 847.
Haddix has not shown that he faced a “substantial risk of
serious harm” from the occasional denial of pain medication or
delay in transferring him to a lower bunk. The result of the
defendants’ actions was unrelieved, pre-existing, back and
shoulder pain, not a worsening of his condition or other serious
harm. See Mayweather v. Foti, 958 F.2d 91, 91 (5th Cir. 1992)
(stating continuing back pain, while unpleasant, does not
demonstrate a constitutional violation). Haddix also has not
shown that the defendants were deliberately indifferent to his
needs for other medical treatment. Although he may not have
received the amount of treatment he felt necessary, such a claim
constitutes a disagreement with medical staff, which is not
actionable in a § 1983 proceeding. See Varnado v. Lynaugh, 920
F.2d 320, 321 (5th Cir. 1991).
Haddix’s excessive-force claims are analyzed under the same
standard applicable to an Eighth Amendment excessive-force claim.
Jackson v. Culbertson, 984 F.2d 699, 700 (5th Cir. 1993). The
plaintiff bears the burden of showing: “(1) an injury (2) which
resulted directly and only from the use of force that was
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excessive to the need and (3) the force used was objectively
unreasonable.” Glenn v. City of Tyler, 242 F.3d 307, 314 (5th
Cir. 2001). Although a showing of “significant injury” is no
longer required, this court does “require a plaintiff asserting
an excessive force claim to have suffered at least some form of
injury.” Id. (internal quotation omitted).
Haddix alleged that, in an effort to wake him, Corporal Cole
once “slapped my feet”; however, Haddix did not allege any
specific injury. The use of this amount of force is not
objectively unreasonable. See Hudson v. McMillian, 503 U.S. 1, 9
(1992) (noting that not every “malevolent touch by a prison guard
gives rise to a federal cause of action”). Haddix also alleged
that Corporal House once kicked him in the ankle to awaken him.
Haddix alleged he suffered pain, but he did not allege that he
suffered pain for any length of time or that he sought any
medical treatment. Such a non-specific assertion of injury
supports a finding that any injury was de minimis. See Siglar v.
Hightower, 112 F.3d 191, 193 (5th Cir. 1997) (finding sore ear
lasting for three days constituted a de minimis injury);
Alexander v. Tippah County, 351 F.3d 626, 631 (5th Cir. 2003)
(temporary nausea was, at most, de minimis injury). Haddix also
alleges in his brief that Corporal House once slammed a steel
door, which struck Haddix in the chest and arm; as this claim is
raised for the first time on appeal, we decline to consider it.
See Burch v. Coca-Cola Co., 119 F.3d 305, 319 (5th Cir. 1997).
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Haddix also asserted that on another occasion, Corporal Joey
Mullins left the gates in solitary confinement open, which
allowed several other inmates to threaten and rob Haddix.
Haddix’s resulting claim of deliberate indifference is purely
speculative. Even accepting as true Haddix’s assertion that
Mullins deliberately left the gates open, Haddix has not alleged
that Mullins, or any other jail official, knew that this would
lead to several other inmates threatening and robbing him. He
has failed to show that officials knew this action presented a
serious risk of harm and that they disregarded this serious risk
of harm. See Farmer, 511 U.S. at 847.
Haddix’s appellate brief also asserts that various
defendants conspired to retaliate against him, in violation of
his First Amendment right of access to the courts, for filing
various civil suits against other persons before he entered the
jail. Haddix acknowledges this claim was not specifically
pleaded in his complaint, but he asserts he would have added this
claim if he had been allowed to submit an amended complaint.
Haddix’s complaint and evidentiary hearing testimony alleged
sufficient facts to raise a retaliation claim. See Adams v.
Hansen, 906 F.2d 192, 194 (5th Cir. 1990) (hearing was “in the
nature of an amended complaint or a more definite statement”).
Although the magistrate judge did not address retaliation,
the magistrate judge’s failure to do so was harmless error
because Haddix has failed to state a valid retaliation claim. To
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substantiate a claim of retaliation, “[t]he inmate must produce
direct evidence of motivation or, the more probable scenario,
allege a chronology of events from which retaliation may
plausibly be inferred.” Woods v. Smith, 60 F.3d 1161, 1166 (5th
Cir. 1995) (internal quotation marks omitted). “The relevant
showing in such cases must be more than the prisoner’s personal
belief that he is the victim of retaliation.” Johnson v.
Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997) (internal quotation
marks omitted). Haddix has not produced direct evidence of a
retaliatory motive; in addition, as his other civil suits were
filed before he entered the jail and did not attack any named
defendant, he has not alleged a chronology of events from which
retaliation may plausibly be inferred. His retaliation claims
consist of nothing more than his “personal belief that he is the
victim of retaliation.” Johnson, 110 F.3d at 310.
In his appellate brief, Haddix alleges that various
defendants are liable for jail policies or for failing to
properly supervise other jail employees. However, Haddix did not
allege any theory of supervisory liability in his initial
complaint, and he made only a single brief reference to an
alleged “ongoing policy” of cruelty to inmates during the
evidentiary hearing. As Haddix’s claims of supervisory liability
appear to be raised for the first time on appeal, we decline to
consider them. See Burch, 119 F.3d at 319.
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Finally, Haddix argues that the magistrate judge erred by
denying his motion for reconsideration. Arguably, the denial of
this motion is not properly before the court because Haddix’s
notice of appeal specified only the underlying judgment. See
Warfield v. Fidelity and Deposit Co., 904 F.2d 322, 325 (5th Cir.
1990). However, even if he had specified the motion for
reconsideration in his notice of appeal, Haddix does not present
sufficient argument on this issue on appeal. See Yohey v.
Collins, 985 F.2d 222, 225 (5th Cir. 1993). Therefore, we
decline to address this issue.
AFFIRMED.