United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 23, 2005
Charles R. Fulbruge III
Clerk
No. 03-20776
Summary Calendar
ARCADE JOSEPH COMEAUX, JR.,
Plaintiff-Appellant,
versus
MACKWANI; DR. LARRY LARGENT; DR. NAIK; DANIEL C.
MAYER; DR. DIMAUNAHAN; PHILLIP PERRY, Lieutenant,
Defendants-Appellees.
------------------------------------------
ARCADE JOSEPH COMEAUX, JR.,
Plaintiff-Appellant,
versus
RICK THALER,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:00-CV-3812
USDC No. 4:01-CV-1411
--------------------
Before REAVLEY, JOLLY, and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
*
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this opinion should not be published and is not precedent except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.
No. 03-20776
-2-
Arcade Joseph Comeaux, Jr., Texas prisoner #841331, appeals
the district court’s grant of summary judgment and dismissal with
prejudice of his 42 U.S.C. § 1983 complaint in Cause No.
4:00-CV-3812. We review the district court’s grant of summary
judgment in favor of Dr. Naik and the dismissal of Comeaux’s
claims against the remaining defendants de novo. See Cousin v.
Small, 325 F.3d 627, 637 (5th Cir.), cert. denied, 540 U.S. 826
(2003); Ruiz v. United States, 160 F.3d 273, 275 (5th Cir. 1998).
As Comeaux has appealed only the denial of his claims relating to
his alleged need for physical therapy and for the denial of
medical care in connection with his fall on October 16, 2000, all
of his other claims alleging the denial of necessary medical care
have been abandoned. See Yohey v. Collins, 985 F.2d 222, 225
(5th Cir. 1993).
After reviewing the record and the briefs submitted by the
parties, we conclude that the district court did not err in
granting Dr. Naik’s summary judgment motion and in denying
Comeaux’s summary judgment motion. See Hare v. City of Corinth,
135 F.3d 320, 325-26 (5th Cir. 1998); Farmer v. Brennan, 511 U.S.
825, 832, 837 (1994). Moreover, the record does not support
Comeaux’s allegations that Dr. Naik provided incomplete and
incompetent summary judgment evidence; that the district court
improperly considered Comeaux’s criminal history and the security
concern he presented in the prison; that the district court
improperly considered medical records that were presented during
No. 03-20776
-3-
the Spears** hearing; that Comeaux’s due process rights were
violated because he did not have access to certain records during
the Spears hearing; and that Comeaux’s due process rights were
violated because he was not aware during the Spears hearing that
the instant case would be consolidated with Cause No. 4:01-CV-
1411. We also conclude that the district court did not abuse its
discretion in denying Comeaux’s motion to compel discovery. See
Mayo v. Tri-Bell Indus., Inc., 787 F.2d 1007, 1012 (5th Cir.
1986).
We do conclude, however, that the district court abused its
discretion in consolidating Comeaux v. Mackawani, Cause No.
4:00-CV-3812, with Comeaux v. Thaler, 4:01-CV-1411. See Dillard
v. Merrill Lynch, Pierce, Genner & Smith, Inc., 961 F.2d 1148,
1161 (5th Cir. 1992). With the exception of the fact that
Comeaux raised Eighth Amendment claims in both civil rights
suits, the suits did not involve common questions of law and
fact. See FED. R. CIV. P. 42(a).
In addition, while the district court was correct that
Warden Rick Thaler, a defendant in Cause No. 4:01-CV-1411, could
not be held vicariously liable for the actions of his employees,
it erred in finding that the warden was sued only in his
supervisory capacity. Comeaux’s complaint, liberally construed,
alleged that Warden Thaler had personal knowledge that the
Estelle High Security Prison Unit was not equipped to meet
**
Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
No. 03-20776
-4-
Comeaux’s special needs and that the failure to meet his special
needs would result in the denial to Comeaux of the basic
necessities of life. In addition, contrary to the district
court’s finding, there is no indication that the remaining
defendants named in Cause No. 4:01-CV-1411 were following the
orders of Dr. Naik. Accordingly, we VACATE the district court’s
consolidation of Cause Nos. 4:00-CV-3812 and 4:01-CV-1411 and the
dismissal of the defendants named in Cause No. 4:01-CV-1411.
Cause No. 4:01-CV-1411 is REMANDED to the district court for
further proceedings. Comeaux’s motion for appointment of counsel
on appeal is DENIED.
AFFIRMED IN PART (CAUSE NO. 4:00-CV-3812); VACATED AND
REMANDED IN PART (Cause No. 4:01-CV-1411); MOTION FOR APPOINTMENT
OF COUNSEL DENIED.