Johnson v. Cherian

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 9, 2002
• Docket: 02-40332
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-40332 Summary Calendar

BILLY RAYFORD JOHNSON,

Plaintiff-Appellant,

versus

FRANCIS CHERIAN; JUDY KENT, Director/Manager Health Services; D. ELLIS, R.N.; J. SLAUGHTER, Physician Assistant; ROCHELLE MCKINNEY, R.N., M.A., Step 2 Grievance Coordinator; CHASTAIN EARNEST, Physician Assistant; ANN DARBY, R.N.-Director of Nursing; LOU NELL HARMAN, Assistant Manager-Health Services; L.A. MASTERS, D.O.-Acting Facility Medical Director; CHARLES FRIZZELL, Administrative Tech IV; BONNIE S. MILLER, Administrative Tech I Count Room,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 9:99-CV-107 -------------------- September 6, 2002

Before JOLLY, EMILIO M. GARZA, and PARKER, Circuit Judges.

PER CURIAM:*

Billy Rayford Johnson, Texas prisoner # 379586, appeals the

district court’s grant of summary judgment in favor of the

defendants on his 42 U.S.C. § 1983 claims. He argues that the

district court abused its discretion in refusing to strike the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-40332 -2-

affidavit of Dr. Glenda Adams and in denying appointment of

counsel; in granting summary judgment to the defendants; and in

delaying the initial screening of his complaint, allegedly in

contravention of 28 U.S.C. § 1915A.

We hold that the district court did not abuse its discretion

in denying the motions to strike and to appoint counsel. See St.

Romain v. Indus. Fabrication & Repair Serv., Inc., 203 F.3d 376,

380 (5th Cir.) (motion to strike), cert. denied, 531 U.S. 816

(2000); Castro Romero v. Becken, 256 F.3d 349, 353-54 (5th Cir.

2001) (appointment of counsel). We further note that the

district court was not required to review the denial of Johnson’s

nondispositive motion to strike de novo. See 28 U.S.C.

636(b)(1)(A); Parks v. Collins, 761 F.2d 1101, 1104 (5th Cir.

1985) (nondispositive motions reviewed for clear error).

We further hold that Johnson has failed to demonstrate any

error in granting summary judgment to the defendants. See, e.g.,

Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 912 (5th Cir. 1992)

(employing de novo review). Johnson’s claims against Defendants

J. Slaughter and Francis Cherian do not rise to the level of a

constitutional violation, as they are tantamount to a

disagreement over the type of the medical care provided. See

Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir. 1997).

Furthermore, Johnson’s conclusional argument that Defendant

Charles Frizzell, as chief of classification, must be afforded

some liability for Johnson’s work and housing reassignments is No. 02-40332 -3-

insufficient to defeat summary judgment and to establish that

Frizzell possessed the knowledge necessary impose liability. See

Farmer v. Brennan, 511 U.S. 825, 837 (1994) (defendant must

“know[] and disregard[] an excessive risk to inmate health or

safety”); Michaels v. Avitech, Inc., 202 F.3d 746, 754-55 (5th

Cir.) (conclusional allegations, speculation, and improbable

inferences are insufficient to defeat a summary judgment motion),

cert. denied, 531 U.S. 926 (2000).

We further find that the unrefuted evidence established that

Defendants Rochelle McKinney and Judy Kent were unauthorized to

expedite Johnson’s treatment and therefore could not be held

liable for a failure to do so. Johnson’s retaliation claim

against Kent is also rejected, as it is supported by nothing more

than a conclusional argument, which is insufficient to

demonstrate retaliatory motive. See Jones v. Greninger, 188 F.3d

322, 324-25 (5th Cir. 1999).

Finally, Johnson has neither alleged nor established any

prejudice suffered as a result of the district court’s alleged

delay in screening his complaint. Therefore, he is not entitled

to any relief on that claim.

AFFIRMED.