IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-10910
Summary Calendar
CARDELL RHETT, JR., also
known as Rhett Cardell, Jr.,
Plaintiff-Appellant,
versus
WAYNE SCOTT ET AL.,
Defendants,
WAYNE SCOTT; CHARLES ALEXANDER, Dr.;
MAXWELL GARDNER, Dr.; SWARTS, Dr.;
B. ALLEN; G. PIERSON; B. CASEL;
UTMB MANAGE CARE; SCHERRY MCKELVEY,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:96-CV-114
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May 21, 1998
Before WISDOM, WIENER and DENNIS, Circuit Judges
PER CURIAM:*
Cardell Rhett, Jr., Texas prisoner # 672730, appeals the
district court’s dismissal of his 42 U.S.C. § 1983 action as
frivolous under 28 U.S.C. § 1915(e)(2)(B)(I). Rhett contends
*
Under 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opinion should not be published and is not precedent except under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.
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that the defendants delayed or failed to provide adequate
treatment for his serious medical needs and forced him to perform
duties which were inconsistent with his medical restrictions,
resulting in serious damage to his knee. Rhett contends that the
district court abused its discretion in dismissing his § 1983
action as frivolous under § 1915(e)(2)(B)(I).
Rhett did not raise any claims concerning Wayne Scott or Dr.
Charles Alexander in his appellate brief; therefore, he has
abandoned these claims on appeal. See Yohey v. Collins, 985 F.2d
222, 225 (5th Cir. 1993).
Rhett argues that G. Pierson and B. Casel failed to assist
him in obtaining medical treatment and a different job assignment
that would be consistent with his medical restrictions. Because
Rhett did not allege that Pierson or Casel actively participated
in depriving him of medical treatment or adopted policies which
caused the alleged constitutional violations, however, we hold
that the district court did not abuse its discretion in
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dismissing Rhett’s claims against Pierson and Clark. See
Thompkins v. Belt, 828 F.2d 298, 302-04 (5th Cir. 1987).
Next, Rhett argues that the medical treatment he received
from Dr. Swarts was constitutionally infirm. Rhett did not,
however, show that the district court abused its discretion in
dismissing his claim against Dr. Swarts. In view of the
substantial amount of medical treatment provided by Dr. Swarts,
any deficiency in this treatment amounts to mere negligence, and
not deliberate indifference. See Varnado v. Lynaugh, 920 F.2d
320, 321 (5th Cir. 1991).
Rhett alleges that UTMB Manage Care improperly failed to
expedite an orthopedic consultation ordered by Dr. Swarts. Rhett
has not shown, however, that the district court abused its
discretion in dismissing his claim. Rhett was examined by an
orthopedic specialist within six weeks after the referral was
made; a six-week delay does not constitute deliberate
indifference to Rhett’s serious medical need. See Wilson v.
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Seiter, 501 U.S. 294, 303 (1991).
Rhett has not shown that the district court abused its
discretion in dismissing his claim that he was forced to perform
duties that were inconsistent with his medical restrictions.
Rhett did not file any grievances concerning this claim which
would have put Scherry McKelvey on notice, and McKelvey was not
directly involved in supervising Rhett’s actual duties. Further,
Rhett stated at the Spears hearing that when he did complain that
his job assignment was inconsistent with the change in his
medical restriction to sedentary work, he was transferred to a
sedentary job assignment. See Jackson v. Cain, 864 F.2d 1235,
1246 (5th Cir. 1989) (negligent work assignment is not
unconstitutional).
Rhett has, however, alleged an arguable Eighth Amendment
claim concerning the 14-month delay in repairing or replacing his
knee brace. Rhett complained that he reported his knee brace was
broken in March 1995 and did not receive a new knee brace until
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May 1996. Rhett did not dispute that Allen sent an E-mail
message to the Brace and Limb Clinic on April 4, 1995, requesting
the repair of the knee brace. However, despite Allen’s request,
Rhett did not receive a new knee brace until May 1996, 14 months
after his initial request. During this period, Rhett allegedly
was forced to continue working with a broken knee brace.
According to Rhett, his knee progressively deteriorated during
this period and he ultimately suffered a completely torn
posterior ligament which required major reconstructive surgery.
Delay in medical care can constitute an Eighth Amendment
violation if there has been deliberate indifference which results
in substantial harm. See Mendoza v. Lynaugh, 989 F.2d 191, 195
(5th Cir. 1993). Rhett has arguably raised sufficient facts to
state a claim that the 14-month delay in repairing or replacing
his knee brace constituted deliberate indifference to his serious
medical need and that the delay resulted in substantial further
damage to his knee. See id. Because Rhett’s claim concerning
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the 14-month delay in receiving a new knee brace is not
frivolous, the district court abused its discretion in dismissing
his claim pursuant to § 1915(e)(2)(B)(I). See Farmer v. Brennan,
511 U.S. 825, 839-40 (1994); Wilson, 501 U.S. at 303. The
district court’s judgment is VACATED as to Rhett’s claim
concerning the 14-month delay in obtaining a new knee brace, and
REMANDED for further proceedings. The remainder of the judgment
is AFFIRMED.
AFFIRMED IN PART, VACATED AND REMANDED IN PART.