IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-21149
(Summary Calendar)
JAMES EDWARD 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 ELLINGBURG, Captain; J.R. GABBARD,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
(H-97-CV-3665)
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March 8, 2000
Before POLITZ, JOLLY, and WIENER, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant James Edward Williams, Texas inmate
# 739898, proceeding pro se and in forma pauperis, appeals the
district court’s dismissal of his complaint for failure to state a
claim upon which relief could be granted. Williams asserted claims
of deliberate indifference to his medical needs, deliberate
*
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this opinion should not be published and is not precedent except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.
indifference to medical restrictions, retaliation, excessive force,
deprivation of due process, and denial of access to the court.
Williams also appeals the district court’s denial of his motions
for a default judgment and for leave to amend. Williams’ pending
motions are DENIED.
Williams’ argument concerning the denial of leave to amend
addresses a supplemental pleading. See Fed. R. Civ. P. 15(d)
(supplemental complaint concerns allegations of events occurring
after the filing of the original complaint); Dean v. Ford Motor
Credit Co., 885 F.2d 300, 302 (5th Cir. 1989) (an amended complaint
concerns allegations of events occurring prior to the original
complaint). Williams was required to obtain leave to file the
supplemental pleading. See Fed. R. Civ. P. 15(d). Williams has
not shown that the district court abused its discretion by denying
him leave to supplement his complaint. Lewis v. Knutson, 699 F.2d
230, 239 (5th Cir. 1983). Williams also has not shown that the
district court abused its discretion by denying his motion for a
default judgment. See Ganther v. Ingle, 75 F.3d 207, 212 (5th Cir.
1996) (a party is not entitled to a default judgment as a matter of
right, even when the defendant is technically in default).
Williams has abandoned his claims that the defendants denied
him access to the court, levied disciplinary charges against him
for refusing to be housed with certain inmates, denied him the
right to present medical record evidence and to call witnesses at
hearings, and that defendant Cordova used excessive force in
removing him from the shower. See Yohey v. Collins, 985 F.2d 222,
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225 (5th Cir. 1993). Further, although Williams states that the
district court erred by denying his motions for discovery, a
temporary restraining order, and an injunction; denying him a jury
trial; granting the defendants’ Fed. R. Civ. P. 7(a) motion; and
denying relief on his state law claims, he has not briefed these
issues sufficiently. See Fed. R. App. P. 28(a)(9). Accordingly,
he has abandoned them. See Grant v. Cuellar, 59 F.3d 523, 524 (5th
Cir. 1995). Williams’ allegations that he was denied various
medical examinations and treatment for his eyes and burning skin
after he was sprayed with a chemical are refuted by the medical
records. See Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991)
(prisoner’s disagreement with medical treatment does not state a
cause of action).
Williams asserted that the defendants used excessive force by
spraying him with a chemical when he refused to move to an upper
bunk. Williams contends that the district court improperly
resolved factual disputes and made credibility determinations in
dismissing this claim.
Williams alleged that the defendants ordered him housed, and
to move, in contravention of medical restrictions of which the
defendants were apprised. Williams alleged that he injured himself
because the defendants did not comply with the medical
restrictions. Williams also contends that the defendants denied
him knee surgery that was approved.
We review a dismissal for failure to state a claim de novo.
Black v. Warren, 134 F.3d 732, 733-34 (5th Cir. 1998); see Shipp v.
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McMahon, 199 F.3d 256, 260 (5th Cir. 2000). Prior to such a
dismissal, the complaint is construed liberally in favor of the
plaintiff, and the factual allegations are accepted as true.
See Shipp, 199 F.3d at 260. Dismissal is improper “unless it
appears beyond doubt that the plaintiff can prove no set of facts
in support of his claim which would entitle him to relief.” Id.
(citation and quotations omitted).
An excessive-force claim is examined to determine “whether
force was applied in a good-faith effort to maintain or restore
discipline, or maliciously and sadistically to cause harm.” Hudson
v. McMillian, 503 U.S. 1, 6-7 (1992). “The Eighth Amendment[] . .
. excludes from constitutional recognition de minimis uses of
physical force, provided that the use of force is not of a sort
repugnant to the conscience of mankind.” Hudson, 503 U.S. at 9-10
(internal quotation and citations omitted).
Williams’ medical claims require a showing that prison
officials acted with deliberate indifference to his serious medical
needs. See Estelle v. Gamble, 429 U.S. 97, 104-06 (1976). A
prison official acts with deliberate indifference if he knows that
an inmate faces “a substantial risk of serious harm and disregards
that risk by failing to take reasonable measures to abate it.”
Farmer v. Brennan, 511 U.S. 825, 837 (1994). Prison “requirements
which compel inmates to perform physical labor which is beyond
their strength, endangers their lives, or causes undue pain
constitutes cruel and unusual punishment.” Howard v. King, 707
F.2d 215, 219 (5th Cir. 1983). “Under certain circumstances,
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allegations of deliberate indifference may be shown when prison
officials deny an inmate recommended treatment by medical
professionals.” Payne v. Lynaugh, 843 F.2d 177, 178 (5th Cir.
1988).
In dismissing Williams’ allegations of excessive force in
conjunction with the chemical spraying, deliberate indifference to
his medical restrictions, and denial of approved knee surgery, the
district court did not confine its inquiry to whether the facts
pleaded by Williams, when accepted as true and viewed in the light
most favorable to Williams, stated a claim upon which relief may be
granted. See Shipp, 199 F.3d at 260 (dismissal for failure to
state a claim is improper “unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which
would entitle him to relief”). Accordingly, the district court’s
decision on these claims is VACATED and the case is REMANDED for
further consideration of these issues.
Williams’ allegations that the defendants conspired to have
his medical restrictions removed and retaliated against him with
disciplinary infractions for refusing to comply with directives
that contravened his medical restrictions are not sufficient to
state a constitutional violation. See Woods v. Smith, 60 F.3d
1161, 1166 (5th Cir. 1995) (inmate must either produce direct
evidence of retaliatory motive or allege a chronology of events
from which retaliation might plausibly be inferred); Wilson v.
Budney, 976 F.2d 957, 958 (5th Cir. 1992) (conclusional allegations
are not sufficient to establish a conspiracy).
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Williams’ claims of a denial of due process in conjunction
with disciplinary proceedings do not state a claim for relief.
Williams has not shown that the results of the disciplinary
proceedings have been expunged or called into question. See Sandin
v. Conner, 515 U.S. 472, 475, 486 (1995); Edwards v. Balisok, 520
U.S. 641, 648-49 (1997). Williams’ claims regarding classification
hearings and the denial of parole afford him no grounds for relief.
See Madison v. Parker, 104 F.3d 765, 768 (5th Cir. 1997) (Texas law
does not create liberty interest in parole; Texas prisoners have no
constitutional expectancy of release on parole); Moody v. Baker,
857 F.2d 256, 257-58 (5th Cir. 1988) (inmates have no protectible
property or liberty interest in custody classification). The
district court’s decision regarding Williams’ claims of conspiracy,
retaliation, and due process are AFFIRMED.
Accordingly, the decision of the district court is AFFIRMED in
part and VACATED and the case REMANDED in part to the district
court for further proceedings. All outstanding motions are DENIED.
AFFIRM IN PART; VACATE AND REMAND IN PART; ALL MOTIONS DENIED.
6