Williams v. Scott

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-20508 Summary Calendar

JAMES EDWARDS WILLIAMS,

Plaintiff-Appellant,

versus

WAYNE SCOTT, Director, Texas Department of Criminal Justice, Institutional Division; GARY L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division; DR. MICHAEL WARREN; TEXAS TECH; ART MOSLEY; JOHN GILBERT; TIMOTHY REVELL; DESSIE F. CHERRY; GROVER W. GOODWELL, JR.; WILLIE ADAMSON, Captain; REGINALD M. SIMS; EDWARD E. MCELYEA; D. D. SANDERS; S. O. WOODS; RANDY MCVEY; PEGGY L. GILMORE; MICHAEL JONES; KANA ASBATHY; CYNTHIA COBERLY; DEBORAH MYRICK; PHILBERT CORDOVA; TOMMY KILE; MICHAEL HOOTEN; GERALD W. DAVIS; JIMMY BOWMAN; CHARLES ELLINBURG, Captain; J. R. GABBARD,

Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Texas USDC No. H-97-CV-3665

May 6, 2002

Before POLITZ, WIENER, and PARKER, Circuit Judges. PER CURIAM:*

James Edwards Williams appeals an adverse summary judgment, on remand

from this court, dismissing his civil rights complaint. We previously vacated in part

the district court’s judgment dismissing his civil rights complaint and remanded for

further proceedings.1

Williams contends that the defendants violated his privilege against cruel and

unusual punishment under the eighth amendment by refusing to provide him with knee

surgery. The eight amendment proscribes medical care that is “sufficiently harmful to

evidence deliberate indifference to serious medical needs.”2 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.”3

“Disagreement with medical treatment does not state a claim for Eighth Amendment

indifference to medical needs.”4 At most, the summary judgment evidence shows that

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 1 See Williams v. Scott, No. 98-21149 (5th Cir. Mar. 8, 2000). 2 Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). 3 Farmer v. Brennan, 511 U.S. 825, 847, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). 4 Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir. 1997). 2 Williams disagreed with the treatment provided by the defendants and not that the

defendants acted with deliberate indifference to his need for knee surgery.

Williams contends that the defendants acted with deliberate indifference to his

medical condition by assigning him to housing above ground level during certain

periods in 1996. During those periods, Williams’ medical restrictions did not require

that he be housed on the ground floor. Accordingly, the defendants did not act with

deliberate indifference to his medical needs.

On remand, the district court considered whether the defendants had acted with

deliberate indifference to Williams’ medical needs by assigning him to an upper bunk

and to an upper row in October 1996. Williams has waived this claim on appeal by

failing to brief the issue.5 Williams also asserts that he was wrongly housed on the

second row at the Clements Unit in September 1998. Because this claim involves facts

arising after the filing of Williams’ amended complaint, it is beyond the scope of our

remand order. Additionally, we rejected Williams’ claim regarding retaliatory prison

disciplinary proceedings in our prior opinion and that issue is beyond the scope of our

remand order.6

5 Fed. R. App. P. 28(a)(4); see also Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993) (arguments are abandoned on appeal if not briefed). 6 Williams, No. 98-21149; see also Eason v. Thaler, 73 F.3d 1322, 1329 (5th Cir. 1996). 3 Williams further asserts that the defendants used excessive force by spraying

him in the face with pepper spray after he refused to move to another cell. We are not

persuaded. Williams has failed to demonstrate that there are genuine issues of material

fact as to whether the force applied by the defendants was “not ‘applied in a good-faith

effort to maintain or restore discipline, [but] maliciously and sadistically to cause

harm,’ and that he suffered an injury.”7

Accordingly, the judgment of the district court is AFFIRMED.

7 Eason v. Holt, 73 F.3d 600, 601-02 (5th Cir. 1996) (quoting Hudson v. McMillian, 503 U.S. 1, 7, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992)). 4