IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-40537
Summary Calendar
ROBERT GRUNDY,
Plaintiff-Appellant,
versus
RONALD SCOTT; MARY CHOATE, Sheriff; UNKNOWN CAMPBELL, Lieutenant;
UNKNOWN MORGAN, Officer; UNKNOWN NEIGHBOR, Sergeant; UNKNOWN
MORTON, Sergeant; UNKNOWN YOUNG, Sergeant; UNKNOWN PRINCE,
Sergeant; JEREMY JOHNSON, Officer; TODD GONODIN, Officer; UNKNOWN
WILLIS, Colonel; BURGHT T. BRANDEN, Colonel; UNKNOWN SWIFT,
Colonel; UNKNOWN BROWN, Colonel; UNKNOWN WILLIAMS, Colonel;
UNKNOWN JOHNSON, Colonel; UNKNOWN NEWHEART, Officer; UNKNOWN
REEVES, Officer; JOHN UNKNOWN DOE; JIMMY UNKNOWN, Officer; JOHN
UNKNOWN DOE, Sergeant,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:96-CV-227
--------------------
February 10, 2000
Before JONES, DUHÉ, and STEWART, Circuit Judges.
PER CURIAM:1
Robert Grundy, TDCJ #99054, appeals the dismissal of his pro
se 42 U.S.C. § 1983 action for failure to state a claim against
Sheriff Mary Choate, Warden Ron Scott, Officer Campbell, and
Officer Morgan, and failure to prosecute his claim against the
remaining defendants. See Fed. R. Civ. P. 12(b), 41(b). Grundy
1
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that this opinion should not be published and is not precedent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.
argues that the district court improperly dismissed Sheriff Choate,
Warden Scott, Officer Campbell, and Officer Morgan because he
stated a claim against them. Grundy contends that Sheriff Choate
and Warden Scott should be held vicariously liable for the actions
of officers under their supervision. Grundy contends that Officer
Campbell should be liable for the loss of Grundy’s property because
Officer Campbell failed to provide a lock to secure Grundy’s
possessions. Grundy contends that Officer Morgan should be liable
because Morgan instigated the first assault and Morgan actually
beat him in a second assault.
Grundy has failed to state a claim against Sheriff Choate and
Warden Scott because supervisory officers cannot be held liable
under § 1983 for the actions of subordinates on a theory of
vicarious liability. See Alton v. Texas A & M Univ., 168 F.3d 196,
200 (5th Cir. 1999). Grundy has failed to state a claim against
Officer Campbell because an adequate state post-deprivation remedy
exists and the deprivation of property caused by Officer Campbell
did not infringe Grundy’s constitutional rights. See Murphy v.
Collins, 26 F.3d 541, 543 (5th Cir. 1994). Grundy has failed to
state a claim in his original petition against Officer Morgan
because he did not allege any physical injury caused by Officer
Morgan. See Gomez v. Chandler, 163 F.3d 921, 923 (5th Cir.
1999)(physical injury is an indispensable element of an excessive
force claim). Grundy may not raise, for the first time on appeal,
the claim that Officer Morgan actually assaulted him. See
Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir.),
petition for cert. filed, 68 U.S.L.W. 3367 (U.S. Nov. 24, 1999)(No.
99-884). Grundy cannot prove any set of facts in support of his
claim which would entitle him to relief, and his claims against
Choate, Scott, Campbell, and Morgan were properly dismissed under
Rule 12(b). See Hall v. Thomas, 190 F.3d 693, 695 (5th Cir. 1999).
Grundy has waived the issue of whether the district court
properly dismissed his remaining claims for failure to prosecute
because he did not brief the issue until his reply brief. See
Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993)(issues not
briefed are waived); United States v. Prince, 868 F.2d 1379, 1386
(5th Cir. 1989)(issues raised for the first time in a reply brief
will not be considered).
Accordingly, judgment of the district court is AFFIRMED.