Day v. Massingill

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 28, 2005

Charles R. Fulbruge III
Clerk
No. 04-40500
Summary Calendar

DAVID EARL DAY,

Plaintiff-Appellant,

versus

A. R. MASSINGILL; VALENCIA POLLARD; H. BENNETT;
UNKNOWN WILSON; UNKNOWN COPPER,

Defendants-Appellees.

--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:02-CV-151-CMC
--------------------

Before WIENER, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

David Earl Day, Texas prisoner # 616994, appeals the

magistrate judge’s grant of summary judgment in favor of the

defendants in his 42 U.S.C. § 1983 complaint alleging deliberate

indifference to an ankle injury on April 18, 2002. This court

reviews the grant of a motion for summary judgment de novo.

Guillory v. Domtar Indus., Inc., 95 F.3d 1320, 1326 (5th Cir.

1996); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.

1994)(en banc).

*
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this opinion should not be published and is not precedent except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. 04-40500
-2-

A prison official acts with deliberate indifference “only if

he knows that inmates face 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, 847 (1994). Other

than Day’s allegations that he sustained an injury that resulted

in excruciating pain, there is no evidence in the medical record

that Day sustained any significant injury on April 18, 2002, that

required immediate medical attention. The record shows that Day

had been treated for foot and ankle problems at least once a week

for a month before and after the alleged injury. Dr. Monte K.

Smith’s affidavit documents the various treatments given to Day

and unequivocally states that Day was given appropriate housing

and work restrictions commensurate with the symptoms he

exhibited. The record contains no evidence to support a claim

that Day had a serious medical need that was deliberately ignored

by any of the defendants. The magistrate judge did not err in

granting summary judgment to the defendants.

For the first time on appeal, Day argues that the magistrate

judge erred in dismissing his suit against Bennett because Bennet

had refused to treat his injury. Day may not raise new factual

allegations for the first time on appeal. Varnado v. Lynaugh,

920 F.2d 320, 321 (5th Cir. 1991).

In his original complaint, Day simply alleged that Bennet

had verbally abused him. On appeal, Day does not complain that

the magistrate judge did not specifically address the claim
 No. 04-40500
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against Bennet in the order granting summary judgment in favor of

all of the defendants. Accordingly, any such argument has been

abandoned. Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).

Day argues that the magistrate judge erred by not appointing

counsel. A trial court is not required to appoint counsel for an

indigent plaintiff asserting a claim under § 1983 unless

“exceptional circumstances” exist. Ulmer v. Chancellor, 691 F.2d

209, 212 (5th Cir. 1982). Contrary to Day’s assertion, the

issues in the case are not complex, and the record shows that Day

was able to present his claims adequately. Day has not shown

that the magistrate judge abused her discretion in not appointing

counsel in this case.

AFFIRMED.