United States Court of Appeals
Fifth Circuit
F I L E D
REVISED JUNE 17, 2004
UNITED STATES COURT OF APPEALS January 5, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-50146
Summary Calendar
MICHAEL WAYNE HARRIS,
Plaintiff-Appellant,
versus
JANIE COCKRELL, Director, Texas Department of Criminal Justice,
Institutional Division; ET AL.
Defendants,
MONTE SMITH, also known as W. Smith, Dr.; JOHNNIE SMITH, also
known as FNU Smith, LVN; HOWARD BENNET, also known as FNU Bennet
P.A., also known as Howard Bennett; BILL WILLIAMS, JR., also
known as FNU Williams, RN,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Texas
(W-02-CV-46)
Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Appellees’ unopposed amended motion to correct
misidentifications in our 5 January 2004 opinion is GRANTED; this
opinion is substituted for that opinion in order to correct
*
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that this opinion should not be published and is not precedent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.
Appellant’s misidentification of two Appellees: Dr. Monte Smith
and Johnnie Smith, L.V.N.
Michael Wayne Harris, Texas prisoner # 782758, proceeding pro
se, appeals the summary judgment for defendants, resulting in the
dismissal of his 42 U.S.C. § 1983 action. He claims defendants
were deliberately indifferent to his serious medical needs.
Harris has shown that the district court erred in dismissing
Harris’ claims against nurses Johnnie Smith and Howard Bennett.
Harris’ allegations that he went to the infirmary on Monday, 8
October 2001, and was repeatedly denied treatment by nurses Smith
and Bennett stated a claim of deliberate indifference, were not
factually frivolous, and created a genuine issue of material fact
precluding summary judgment. Denton v. Hernandez, 504 U.S. 25,
31-34 (1992); Bradley v. Puckett, 157 F.3d 1022, 1025 (5th Cir.
1998); FED. R. CIV. P. 56(c).
The district court also erred in dismissing Harris’ claim
against nurse Bill Williams. Harris alleged that, on 9 October, he
returned to the infirmary; and that nurse Williams observed him
vomiting blood. At the Spears hearing, Harris alleged that he also
had bloody stools. Harris testified that, despite the fact that he
was vomiting blood and had bloody stools, nurse Williams kept him
in the infirmary overnight and provided him with only a trash can
in which to vomit. Essentially, Harris has alleged delay in his
medical care for a serious medical need, gastrointestinal bleeding.
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His allegations, viewed in the light most favorable to him, are
sufficient to state a claim of deliberate indifference. These
allegations are neither delusional nor fantastic. Thus, the
district court erred in dismissing the claim against nurse Williams
for failure to state a claim and as frivolous. Lastly, these
allegations created a genuine issue of material fact precluding
summary judgment.
On the other hand, the district court did not err in
dismissing the claim against Dr. Monte Smith. Harris made no
specific allegations in support of his assertion that Dr. Smith
failed to supervise properly. He also failed to allege that Dr.
Smith was personally involved in his medical treatment. Williams
v. Luna, 909 F.2d 121, 123 (5th Cir. 1990); Baker v. Putnal, 75
F.3d 190, 199 (5th Cir. 1996).
That part of the judgment dismissing the claim against Dr.
Monte Smith is AFFIRMED; that part of the judgment dismissing the
above-described claims against nurses Johnnie Smith, Howard
Bennett, and Bill Williams is VACATED; and this action is REMANDED
for further proceedings consistent with this opinion.
AFFIRMED IN PART; VACATED IN PART; AND REMANDED.
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