Rhett v. Scott

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 9, 1999
• Docket: 99-10282
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-10282 Summary Calendar

CARDELL RHETT, JR., also known as Rhett Cardell, Jr.,

Plaintiff-Appellant,

versus

WAYNE SCOTT, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION; CHARLES ALEXANDER, Dr.; MAXWELL GARDINER, Dr.; SWARTS, Dr.; B. ALLEN; G. PIERSON; B. CASEL; UTMB MANAGED CARE; SCHERRY MCKELVEY,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 2:96-CV-114 --------------------

November 8, 1999

Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

Cardell Rhett, Texas prisoner # 672730, appeals the district

court’s dismissal of his 42 U.S.C. § 1983 action after remand for

consideration of his claim that the defendants delayed replacing

a necessary knee brace for 14 months. Rhett contends that the

defendants’ delay in obtaining the new knee brace constituted

deliberate indifference to his serious medical need for a new

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-10282 -2-

knee brace. This court’s prior decision which held that Rhett

stated a claim of deliberate indifference concerning the 14-month

delay in reviewing a new knee brace and that the claim was not

frivolous became the “law of the case.” See Young v. Herring,

917 F.2d 858, 861 (5th Cir. 1990). On remand, the district court

was bound to accept this determination that Rhett had stated a

claim and that the claim was not frivolous. See id. The

district court erred in dismissing Rhett’s claim for a second

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

U.S.C. § 1915A and 42 U.S.C. § 1997e(c). Accordingly, the

judgment is REVERSED and the case is REMANDED for further

proceedings.

REVERSED AND REMANDED.