IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 28, 2008
No. 06-20869
Summary Calendar Charles R. Fulbruge III
Clerk
ARCADE JOSEPH COMEAUX, JR
Plaintiff-Appellant
v.
DARRELL SUTTON; MARK BISCAMP; ROBERT JENKINS, JR; AUSTIN
MCCOMB; TIMOTHY SIMMONS; BRADLEY HUTCHISON; DARRELL
LUKER; SAMMY WRIGHT; L LIGGINS; MICHAEL VELASQUEZ; ROBERT
QUADA; DEMETRIC PHIPPS; LISA HARRISON; JENNIFER RAGAN;
MARTHA BLACKBURN; EDNA LARPENTUER; PATTI REVEL; DEVON
CABALLERO; GAIL MACCARTNEY; MS BANKS, Nurse; RICK THALER;
DENISE BOX; DR JOHN DOE; RANDALL HEALY; JOHN DOE - 1; JOHN
DOE - 2; JOHN DOE - 3; JANE DOE - 3; JOHN DOE - 4; JOHN DOE - 5;
ROLLIN ROBINSON; FRANK HOKE; NATHANIEL QUARTERMAN, Director
Texas Department of Criminal Justice - Institutional Division; GARY
JOHNSON; TEXAS DEPARTMENT OF CORRECTIONS OF CRIMINAL
JUSTICE INSTITUTIONAL DIVISION; UNIVERSITY OF TEXAS MEDICAL
BRANCH AND CORRECTIONAL MANAGED HEALTH CARE; UNKNOWN
GIBSON; PATTI DUKE; CURTIS ROBERTS; DOUG DRETKE
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:03-CV-2555
No. 06-20869
Before HIGGINBOTHAM, STEWART and OWEN, Circuit Judges.
PER CURIAM:*
Arcade Joseph Comeaux, Jr., Texas prisoner # 841331, appeals the district
court’s granting of the defendants’ summary judgment motion and the dismissal
with prejudice of his pro se, in forma pauperis 42 U.S.C. § 1983 suit. He also
moves for the appointment of counsel.
We review a grant of summary judgment de novo, viewing all evidence in
the light most favorable to the nonmoving party and drawing all reasonable
inferences in that party’s favor. Crawford v. Formosa Plastics Corp., 234 F.3d
899, 902 (5th Cir.2000). When considering a summary judgment motion, the
trial court may not weigh the evidence or make credibility determinations.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
With respect to Comeaux’s excessive use of force claim, it is undisputed
that Comeaux was injured as the result of a “major use of force” by certain
defendants. Because a genuine issue of material fact exists regarding the need
and amount of force used by the defendants, the injuries could not be determined
to be de minimus simply by evaluating the physical nature of the injury. See
Williams v. Bramer, 180 F.3d 699, 703-04 (5th Cir. 1999). Accordingly, the
district court erred in dismissing Comeaux’s excessive use of force claim.
The district court’s dismissal of Comeaux’s failure to protect claim was
based solely upon its conclusion that Comeaux had not suffered a “cognizable
injury” in connection with his excessive force claim. For the reasons noted, the
district court did not properly determine whether Comeaux suffered a cognizable
injury. Accordingly, the district court’s rulings on Comeaux’s excessive use of
force and failure to protect claims are vacated, and the case is remanded for
further proceedings in connection with those claims.
*
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.
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No. 06-20869
The district court did not err in dismissing Comeaux’s due process claims
and granting the defendants’ summary judgment motion in connection with
those claims. Comeaux has no liberty interest in the resolution of his prison
grievances. See Geiger v. Jowers, 404 F.3d 371, 373-74 (5th Cir. 2005). In
addition, the disciplinary restrictions Comeaux received in connection with
disciplinary cases 20020152797 and 20020250567 and in connection with the
charge that he damaged a library book did not result in the imposition of an
atypical or significant hardship in relation to the ordinary incidents of prison
life. See Malchi v. Thaler, 211 F.3d 953, 958 (5th Cir.2000); Madison v. Parker,
104 F.3d 765, 767-68 (5th Cir. 1997); Luken v. Scott, 71 F.3d 192, 193 (5th
Cir.1995); Moody v. Baker, 857 F.2d 256, 257-58 (5th Cir. 1988). Moreover,
because Comeaux suffered no constitutional deprivation in connection with the
challenged disciplinary proceedings, he could not show that his rights were
violated because of an unconstitutional policy or custom of the defendants. See
Monell v. Dep’t of Soc. Serv. of City of New York, 436 U.S. 658, 694 (1978).
Comeaux’s appellate brief asserts facts and raises claims concerning
events that have taken place since the district court entered its judgment. In
addition, he challenges disciplinary case 20030108272 for the first time.
Because these allegations and claims are raised for the first time on appeal, they
will not be considered. See Whitehead v. Johnson, 157 F.3d 384, 387-88 (5th Cir.
1998); Theriot v. Parish of Jefferson, 185 F.3d 477, 491 n.26 (5th Cir. 1999). In
addition, all claims not addressed or adequately briefed in Comeaux’s appellate
brief are considered abandoned. See Haines v. Kerner, 404 U.S. 519, 520-21
(1972); Grant v. Cuellar, 59 F.3d 523, 524-25 (5th Cir. 1995); Yohey v. Collins,
985 F.2d 222, 224-25 (5th Cir. 1993); Brinkmann v. Dallas County Deputy Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987). Comeaux’s motion for appointment of
counsel is denied. See Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982).
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No. 06-20869
VACATED AND REMANDED IN PART; AFFIRMED IN PART; MOTION
DENIED.
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