Drew v. Terry

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT June 19, 2003

Charles R. Fulbruge III Clerk No. 02-50605 Summary Calendar

JULIUS DREW, JR.,

Plaintiff-Appellant,

versus

HASSEL R. TERRY; ALTON DALE CASKEY; DANIEL W. SCHMEDTHORST; WILLIAM SHAIA; JAMES R. ELDRIDGE,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. W-00-CV-260 --------------------

Before DAVIS, JONES and STEWART, Circuit Judges.

PER CURIAM:*

Julius Drew, Jr., Texas prisoner #414669, appeals the

dismissal of his pro se, in forma pauperis (IFP) civil rights

complaint. In addition to arguing the merits of his civil rights

claims, Drew argues the district court erred in failing to appoint

him counsel; the district court erred in concluding that his

amended complaint replaced his original complaint; the district

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-50605 -2-

court erred in imposing monetary sanctions; the district court

erred in denying his non-dispositive motions without requiring a

response from the defendants and without a hearing; and the

appellees’ letter brief should be stricken.

The appellees have filed a motion to dismiss the appeal for

want of jurisdiction. We treat Drew’s “Motion for Time to Comply

with Court Order to Pay Sanction and Other Requirements Necessary

to Respond to the Granting of Defendants’ Summary Judgment and

Dismissal of Plaintiff’s Cause,” which clearly evinced Drew’s

intent to appeal, as a timely notice of appeal. See Stevens v.

Heard, 674 F.2d 322 (5th Cir. 1982). Appellees’ motion is

therefore DENIED.

The district court did not abuse its discretion in denying

Drew’s motion for appointment of counsel as his case did not

present exceptional circumstances. See Ulmer v. Chancellor, 691

F.2d 209, 212 (5th Cir. 1982). For the same reason, his motion to

this court to appoint counsel is DENIED. Drew’s motion to strike

appellees’ letter brief is also DENIED.

The district court implicitly granted Drew’s motion to amend

his complaint and, because the amended complaint did not refer to

and incorporate the original complaint, it considered the original

complaint abandoned. This finding was not erroneous. See King v.

Dolan, 31 F.3d 344, 346 (5th Cir. 1994). We further conclude that

Drew had ample notice of the imposition of monetary sanctions

against him for filing frivolous motions and that he had ample No. 02-50605 -3- opportunity to explain why his filings were not frivolous. Any

error by the district court in its imposition of sanctions was

harmless. See FED. CIV. P. 61. The district court did not err in

denying Drew’s non-dispositive motions without requiring a response

from defendants or holding hearings.

With respect to the merits of his civil rights claims, we do

not consider Drew’s claims regarding William Shaia and Sergeant

Kilgore. His claims against Shaia were abandoned in his amended

complaint, and the district court did not allow Drew to add Kilgore

as a defendant to the suit. Drew’s conclusory claim that he was

denied medical treatment fails to establish a violation by the

defendants of a constitutional right and, thus, will not be

considered.

Drew argues that defendants Hassel R. Terry, Alton Dale

Caskey, James Eldridge and Daniel Schmedthorst, all officials or

employees of the Texas Department of Criminal Justice-Institutional

Division, acted with deliberate indifference by failing to protect

him from physical injuries he sustained as a result of an

altercation with another inmate. Prison officials have a duty

under the Eighth Amendment to protect inmates from violence at the

hands of other prisoners. Farmer v. Brennan, 511 U.S. 825, 833

(1994); see also Horton v. Cockrell, 70 F.3d 397, 400-02 (5th Cir.

1995). To establish a failure-to-protect claim, an inmate must

show that he was “incarcerated under conditions posing a

substantial risk of serious harm, and that the prison official’s No. 02-50605 -4- state of mind [was] one of deliberate indifference to the

prisoner’s health or safety.” Horton, 70 F.3d at 401. A prison

official acts with deliberate indifference “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.

Drew attempts to incorporate by reference his motion in

opposition to Schmedthorst’s summary judgment motion. This is not

permitted. See Perillo v. Johnson, 79 F.3d 441, 443 n.1 (5th Cir.

1996). After applying a de novo standard of review, we conclude

that the district court did not err in granting Schmedthorst’s

motion for summary judgment and in dismissing Drew’s claims against

Eldridge under 28 U.S.C. § 1915(e)(2)(B) as frivolous and for

failure to state a claim as Drew failed to show that either of

these defendants acted with deliberate indifference. See Melton v.

Teachers Ins. & Annuity Ass’n of Am., 114 F.3d 557, 559 (5th Cir.

1997); Black v. Warren, 134 F.3d 732, 734 (5th Cir. 1998); Farmer,

511 U.S. at 847; Jackson v. Cain, 864 F.2d 1235, 1251-52 (5th Cir.

1989).

Drew does not challenge on appeal the district court’s

conclusion that his claims against Terry and Caskey in their

official capacities were barred by the Eleventh Amendment. Issues

that are not argued on appeal are deemed abandoned. Brinkmann v.

Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.

1987). No. 02-50605 -5- In conclusion, the appellees’ motion to dismiss the appeal for

lack of jurisdiction and Drew’s motions for appointment of counsel

and to strike the appellees’ letter brief are DENIED. The district

court’s final judgment, granting Schmedthorst’s summary judgment

motion and dismissing Drew’s claims against Eldridge, Terry, and

Caskey as frivolous and for failure to state a claim under 28

U.S.C. § 1915(e)(2)(B), is AFFIRMED.

MOTIONS DENIED; AFFIRMED.