Vallier v. Harris

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 6, 1998
• Docket: 97-50054
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 97-50054 Summary Calendar

WILBERT VALLIER,

Plaintiff-Appellant,

versus

RUBIN HARRIS, Medical Doctor, Bastrop, Texas, ET AL.,

Defendants,

RUBIN HARRIS, Medical Doctor, Bastrop, Texas; CALVIN YOUNG, Physician Assistant; GARY BOWLING, Physician Assistant,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Texas USDC No. A-93-CA-41 - - - - - - - - - - December 26, 1997 Before JOLLY, BENAVIDES, and PARKER, Circuit Judges.

PER CURIAM:*

Wilbert Vallier, federal prisoner #01465-078, appeals from a

jury verdict in favor of the defendants on his Bivens v. Six

Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.

388, 397 (1971), claims of deliberate indifference to serious

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 97-50054 -2-

medical needs and from a dismissal of his negligence claims under

the Federal Tort Claims Act for lack of subject-matter

jurisdiction. Vallier contends that the district court plainly

erred in instructing the jury on deliberate indifference because

the court failed to instruct the jury that it could render a

verdict in his favor if it found that the defendants were

negligent in administering medical treatment to him. He also

contends that the jury’s verdict as to his claims of deliberate

indifference to serious medical needs was contrary to the

evidence and that he was entitled to relief on his negligence

claims.

Vallier has not demonstrated, as to his argument that the

deliberate-indifference instruction constituted plain error, a

"substantial and ineradicable doubt whether the jury has been

properly guided in its deliberations." Bender v. Brumley, 1 F.3d

271, 276-77 (5th Cir. 1993). This court declines to address

Vallier’s contention that the jury verdict on his claims of

deliberate indifference to serious medical needs was contrary to

the evidence because Vallier has failed to provide to this court

a transcript of his trial. See Fed. R. App. P. 10(b); Powell v.

Estelle, 959 F.2d 22, 26 (5th Cir. 1992).

Vallier has not demonstrated that the district court erred

in dismissing his claims of negligence under the Federal Tort

Claims Act due to his failure to file his federal complaint

within six months of the final denial by the appropriate agency. No. 97-50054 -3-

See 28 U.S.C. § 2401(b) (West 1997); McCallister v. United States

By United States Dep't of Agric., Farmers Home Admin., 925 F.2d

841, 843 (5th Cir. 1991).

AFFIRMED.