Case: 10-40577 Document: 00511739641 Page: 1 Date Filed: 01/27/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 27, 2012
No. 10-40577
Summary Calendar Lyle W. Cayce
Clerk
THOMAS JEFFREY STONE,
Plaintiff-Appellant
v.
DENNIS K. BLEVINS; MICHAEL SIZEMORE; DANFORD L. TAYLOR; ALVIN
L. HAAK; LASHOWEN D. JOHNSON; LURENZA W. HUTCHISON; KAREN
SEXTON; DAVID FORTNER; KELLY MAXWELL; VERNALEA MCDANIEL;
CAROL MARIE CLARK,
Defendants-Appellees
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:08-CV-217
Before JONES, Chief Judge, and PRADO and ELROD, Circuit Judges.
PER CURIAM:*
Thomas Jeffrey Stone, Texas prisoner # 671904, has appealed the
magistrate judge’s order granting the motion for summary judgment and
dismissing on grounds of qualified immunity his denial-of-medical-care claims
against physician’s assistant, David Fortner, and triage nurses, Vernalea
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-40577
McDaniel and Carol Marie Clark. His complaint is that the defendants delayed
in treating his serious eye disease, and that he is blind in one eye as a result.
Stone cannot show on the basis of the summary judgment evidence that
Fortner, McDaniel, and Clark were deliberately indifferent to his eye condition.
At most, the evidence shows that the defendants were negligent or grossly
negligent, not that their actions were subjectively reckless. See Easter v. Powell,
467 F.3d 459, 464 (5th Cir. 2006); Eason v. Thaler, 73 F.3d 1322, 1329 (5th Cir.
1996). The magistrate judge’s order granting the motion for summary judgment
of Fortner, McDaniel, and Clark is AFFIRMED.
Stone has also appealed the magistrate judge’s judgment dismissing
following a jury trial his use-of-force claims against corrections officer, Danford
L. Taylor. Stone complains that the magistrate judge abused his discretion in
limiting discovery of and excluding from evidence an unredacted version of an
investigatory report and in limiting discovery of and excluding from evidence
facts contained in Taylor’s disciplinary file and facts related to grievances filed
against Taylor with respect to other use-of-force incidents.
The record reflects that most of the redactions from the investigatory
report pertained to a polygraph examination and identifying data. Stone has not
challenged the magistrate judge’s ruling that evidence of those matters was
inadmissible. The magistrate judge examined the unredacted investigatory
report in camera, and he permitted Stone to elicit relevant evidence of a witness’
statement that had been redacted from the report. Evidence of other use-of-force
incidents and grievances filed against Taylor was not admissible to show
Taylor’s propensity for violence, as Stone contends, and, to the extent that the
evidence was offered to show motive or intent, it was properly excluded because
its probative value was outweighed by its inherent prejudice. See United States
v. Krezdorn, 639 F.2d 1327, 1332 (5th Cir. Unit A 1981); United States v.
Beechum, 582 F.2d 898, 910-11 (5th Cir. 1978) (en banc). Stone has not shown
that his substantial rights were affected by any error on the part of the
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No. 10-40577
magistrate judge in limiting discovery of and excluding the evidence of the
investigatory report and the unrelated use-of-force incidents and grievances. See
Crosby v. Louisiana Health Service and Indem. Co., 647 F.3d 258, 261 (5th Cir.
2011); Becker v. Tidewater, Inc., 586 F.3d 358, 368 n.7 (5th Cir. 2009).
Stone complains also that the magistrate judge abused his discretion in
refusing to permit him to call as witnesses officer John Vanderwerff, retinal
specialist, Dr. Erik Van Kuijk, and seven inmate fact witnesses. Because error
was not preserved with respect to the magistrate judge’s rulings regarding
officer Vanderwerff, we review those rulings for plain error. See Wright v. Ford
Motor Co., 508 F.3d 263, 272 (5th Cir. 2007). Stone cannot show that the district
court committed reversible plain error in excluding Vanderwerff’s testimony as
cumulative. See id. Stone has not shown that the magistrate judge abused his
discretion in excluding Van Kuijk’s testimony and the testimony of the inmate
fact witnesses as cumulative. See Becker, 586 F.3d at 368 n.7. Nor has he
shown that his substantial rights were affected by the magistrate judge’s
rulings. See id. The magistrate judge’s judgment dismissing Stone’s use-of-force
claim against Taylor is AFFIRMED.
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