UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-20916
Summary Calendar
LAZARO MENDIVE GONZALEZ,
Plaintiff-Appellant,
versus
ROBERT A. WALLIS, MITCH DeLEON, DOC CRANTS,
PAM FUGAZZI, FRED JOACHIM, and P. HAMMONDS,
Defendants-Appellees.
Appeal from the United States District Court
For the Southern District of Texas
(H-93-CV-2126)
July 1, 1998
Before POLITZ, Chief Judge, WIENER and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Lazaro Mendive Gonzalez appeals the dismissal of his 42 U.S.C. § 1983 civil
rights action and the denial of his petition for a writ of habeas corpus under 28
U.S.C. § 2241. For the reasons assigned, we affirm.
*
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 R. 47.5, the Court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
BACKGROUND
Gonzalez, proceeding pro se and in forma pauperis, is an alien who arrived
in the United States in 1980 during the boatlift from Mariel Harbor, Cuba.
Although a decision was made to exclude the Mariel Cubans, Cuba refused to
accept their return and they were granted immigration parole. In 1988, Gonzalez
was convicted of a third-degree felony assault in Texas and sentenced to five years
imprisonment. Upon completion of his sentence, Gonzalez was released into the
custody of the Immigration and Naturalization Service. After a hearing, he was
ordered excluded. Gonzalez has since remained incarcerated by the INS in several
correctional institutions.
In 1993, invoking § 1983, Gonzalez filed the instant action against various
INS and Corrections Corporation of America officials, alleging illegal detention
and inadequate medical care. The district court granted Gonzalez IFP status and
ordered service on three CCA officials; Doc Crants, Pam Fugazzi, and Fred
Joachim. Thereafter, Gonzalez filed numerous supplemental pleadings in which
he expanded his claims to include the medical conditions at facilities where he
subsequently was housed, as well as denial of access to the courts, failure to
protect, and excessive force. In September 1995, Gonzalez reiterated his § 1983
claims, and his illegal detention claims, in a petition for habeas corpus under 28
2
U.S.C. § 2241.
Gonzalez does not challenge his Texas criminal conviction or the exclusion
order, but contends that his continued detention is illegal. He also maintains that
he did not timely receive medical attention and that his hernia was not properly
treated. After undergoing surgery for his hernia, he decries the medical
accommodations and claims that he was forced to work.
The defendants moved for summary judgment and Gonzalez filed several
responses, clarifications, and supplements. On August 8, 1996, the district court
entered an order of partial dismissal, finding that Gonzalez was not being detained
illegally and dismissing this claim under 28 U.S.C. § 1915(e). The court also
granted Crants, Fugazzi, and Joachim summary judgment, finding that they were
not responsible parties. The court thereafter granted the defendants summary
judgment on the inadequate medical care claims up to the time of the hernia
surgery, finding no evidence of deliberate indifference. The court retained the
claims that the defendants had been deliberately indifferent to Gonzalez’s medical
needs immediately after his hernia surgery when he allegedly was not provided a
bed and was forced to mop the floors. Other claims, including denial of access to
courts, failure to protect, and use of excessive force were found to be claims against
entities not parties to this action, and were dismissed without prejudice.
3
Gonzalez filed an appeal which we dismissed for lack of jurisdiction.
Thereafter, the trial court conducted a Spears1 hearing on the remaining claims and
found that the allegations failed to demonstrate deliberate indifference and
constituted merely episodic acts. The court dismissed the remaining claims under
§ 1915(e)(2)(B)(ii) and Gonzalez timely appealed.
ANALYSIS
Upon a de novo review,2 we conclude that the habeas petition was denied
properly and that the § 1983 action properly was dismissed for the reasons stated
by the district court in its Memorandum on Partial Dismissal and at the Spears
hearing. It is now well settled that continuing federal custody of Mariel Cubans,
like Gonzalez, is within statutory authority and does not violate constitutional
protections.3 As to the inadequate medical care claims, the record is devoid of
sufficient allegations that prison officials were deliberately indifferent to his serious
1
Spears v, McCotter, 766 F.2d 179 (5th Cir. 1985).
2
Gisbert v. U.S. Attorney General, 988 F.2d 1437 (5th Cir.), amended, 997 F.2d
1122 (5th Cir. 1993) (dismissal of habeas corpus petition reviewed de novo); Black v.
Warren, 134 F.3d 732 (5th Cir. 1998) (section 1915(e)(2)(B)(ii) dismissal reviewed de
novo); Martin v. Memorial Hosp. at Gulfport, 130 F.3d 1143 (5th Cir. 1997) (grant of
summary judgment reviewed de novo).
3
Gisbert, 988 F.2d 1437 (5th Cir.), amended, 997 F.2d 1122 (5th Cir. 1993).
Although the district court did not specifically mention Gonzalez’ habeas petition when
addressing the illegal detention claim, the challenges in the § 1983 pleadings were the same
as those raised in the habeas petition.
4
medical needs, an essential element for such claims.4
The judgment appealed is AFFIRMED; MOTIONS DENIED.
4
Estelle v. Gamble, 429 U.S. 97 (1976). The pleadings and Gonzalez’ testimony at
the Spears hearing reveal that Gonzalez received treatment when requested, the post-surgery
facilities were adequate, and Gonzalez was not forced to work.
5