Smith v. Wells

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 10, 2002
• Docket: 01-41311
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-41311 Summary Calendar

MICHAEL WAYNE SMITH,

Plaintiff-Appellant, versus

D. WELLS, In her individual capacity; M. CARLIN, in her individual capacity; P. LUNSFORD, in her individual capacity; P. WATERS, in her official & individual capacities; PEREZ, Doctor; S. CHRISTENSEN, in her individual & official capacities; JANE DOE, Dermatologist University of Texas, Medical Branch,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:98-CV-1715 -------------------- May 9, 2002

Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Michael Wayne Smith appeals the dismissal of his 42 U.S.C.

§ 1983 complaint against the above-named defendants as frivolous

and for failure to state a claim, pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(I) & (ii).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-41311 -2-

Smith argues that he was a pretrial detainee at the time of

the events alleged in his complaint, and that the district court

therefore erred in analyzing his claims against a deliberate

indifference standard. Smith contends that the district court

should have made further inquiry into his pretrial detainee

status.

Despite Smith’s argument against application of the

deliberate indifference standard, he argues that the district

court erred in failing to find that nurses at the Orange County

Jail (Jail) acted deliberately indifferent when they denied Smith

a follow-up visit with his dermatologist (Dr. Doe). He also

challenges the district court’s dismissal of his failure-to-

receive-antihistamine claim, arguing that the district court

erred in it factual/legal determination that the Jail nurses’

disagreement with Dr. Doe’s recommended treatment failed to

constitute deliberate indifference. Because Smith does not

challenge his remaining claims of deliberate indifference raised

in the district court, those issues are deemed abandoned. See

Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).

We have reviewed the record and Smith’s appellate brief and

hold that, even accepting as true Smith’s claim regarding his

pretrial detainee status, the district court committed no error

since the deliberate indifference standard still applies to

Smith’s claims. See Gibbs v. Grimmette, 254 F.3d 545, 548 (5th

Cir. 2001). Smith does not demonstrate that the failure to No. 01-41311 -3-

schedule his follow-up appointment or deliver his antihistamine

prescription constituted more than negligent conduct on the part

of the Jail nurses. Accordingly, the district court did not err

in dismissing Smith’s complaint as frivolous and for failure to

state a claim. See Wagner v. Bay City, Tex., 227 F.3d 316, 324

(5th Cir. 2000); Berry v. Brady, 192 F.3d 504, 507 (5th Cir.

1999); Williams v. Treen, 671 F.2d 892, 901 (5th Cir. 1982).

AFFIRMED.