Case: 08-41124 Document: 00511088700 Page: 1 Date Filed: 04/22/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 22, 2010
No. 08-41124
Summary Calendar Lyle W. Cayce
Clerk
HORACE CULLUM
Plaintiff-Appellant
v.
TEXAS DEPARTMENT OF CRIMINAL JUSTICE; DR JOHN DOE #1; DR
JOHN DOE #2; DR JOHN DOE #3; UNIVERSITY OF TEXAS MEDICAL
BRANCH; DEBORAH HIENENBERG, RN; NATHANIEL QUARTERMAN;
ANTHONY COLLINS, Warden of the CT Terrell Unit; TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION;
CHANCE LOOMIS IRWIN, MD; KATHRYN M TRAHAN, MD; KENNETH
WOODSIDE, MD; MICHAEL BRISCO, JR; VINCENT, MD; RILEY, MD
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 3:05-CV-437
Before KING, STEWART and HAYNES, Circuit Judges.
PER CURIAM:*
Horace Cullum, Texas prisoner # 1208593, appeals the dismissal of his 42
U.S.C. § 1983 complaint. Proceeding pro se and in forma pauperis (IFP), Cullum
alleged in an amended complaint, a more definite statement, and a supplement
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-41124
to his more definite statement that the defendants were deliberately indifferent
to his serious medical needs with respect to the treatment of his right inguinal
hernia (RIH). Cullum also claimed retaliation based on his filing of the instant
suit. With respect to Cullum’s claims of deliberate indifference, the district court
granted summary judgment in favor of Deborah Hienenberg 1 and dismissed the
claims against the remaining defendants pursuant to 28 U.S.C. § 1915(e)(2)(B).
The district court dismissed all of Cullum’s claims of retaliation pursuant to
§ 1915(e)(2)(B).
Cullum asserts that the district court failed to liberally construe his
complaint and abused its discretion in not granting him a hearing, denying his
motions for appointment of counsel, denying his motion to sever his claims
against Hienenberg, and precluding him from deposing witnesses. He further
asserts that, in not allowing a jury trial in his case, the district court abused its
discretion and violated his right of access to the courts. There is no indication
in the record that the district court failed to liberally construe Cullum’s
complaint. Additionally, because the district court ordered Cullum to file a more
definite statement and Cullum’s responses were considered by the district court,
a hearing was not necessary in this case. See Green v. McKaskle, 788 F.2d 1116,
1120 (5th Cir. 1986). Cullum’s remaining assertions concerning the district
court’s denial of his motions, the deposition of witnesses, and the lack of a trial
are meritless. See § 1915(e)(2)(B); F ED. R. C IV. P. 56; Jackson v. Cain, 864 F.2d
1235, 1242 (5th Cir. 1989); Nor-Tex Agencies, Inc. v. Jones, 482 F.2d 1093,
1099-1100 (5th Cir. 1973).
Cullum challenges the district court’s grant of Henneberg’s motion for
summary judgment. This court reviews the grant of a motion for summary
judgment de novo, applying the same standards as the district court. Hill v.
Carroll County, Miss., 587 F.3d 230, 233 (5th Cir. 2009). Summary judgment
1
The record refers to this appellee also as Deborah Henneberg.
2
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No. 08-41124
should be granted when, viewing all disputed facts and inferences in the light
most favorable to nonmovant, the pleadings, discovery and disclosure materials,
and any affidavits show that there is no genuine issue as to any material fact
and that the movant is entitled to judgment as a matter of law. F ED. R. C IV.
P. 56(c)(2); Hill, 587 F.3d at 233. The nonmovant cannot defeat summary
judgment with conclusional allegations, unsubstantiated assertions, or only a
scintilla of evidence. Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007).
To state a claim under the Eighth Amendment based on inadequate
medical treatment, a plaintiff “must allege acts or omissions sufficiently harmful
to evidence deliberate indifference to serious medical needs.” Estelle v. Gamble,
429 U.S. 97, 106 (1976). Deliberate indifference is a mental state more
blameworthy than negligence, equating to subjective recklessness under
criminal law. Farmer v. Brennan, 511 U.S. 825, 834-36, 839-40 (1994).
“Deliberate indifference encompasses only the unnecessary and wanton infliction
of pain repugnant to the conscience of mankind.” Stewart v. Murphy, 174 F.3d
530, 534 (5th Cir. 1999) (internal quotation marks and citation omitted). A delay
in medical care violates the Eighth Amendment only if it is based on deliberate
indifference and results in substantial harm. Mendoza v. Lynaugh, 989 F.2d
191, 195 (5th Cir. 1993).
Cullum alleged that Hienenberg, a nurse in Cullum’s prison unit, denied
him medical care during one of his visits to the infirmary because, without
treating him, she ordered him to return to the infirmary at a time after her shift
had ended. The grant of summary judgment was not erroneous because there
was no evidence that Henneberg acted with deliberate indifference or that the
alleged two-hour delay resulting from her conduct caused any substantial harm
to Cullum. See Stewart, 174 F.3d at 534; Mendoza, 989 F.2d at 195.
With respect to the dismissal of Cullum’s claims of deliberate indifference
against the remaining defendants, Cullum argues that the deliberate
indifference to his RIH was evidenced by a delay of two and one-half years prior
3
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No. 08-41124
to the performance of a herniorrhaphy to treat the RIH. Cullum’s allegations did
not include facts concerning specific interactions with the remaining defendants
or any facts indicating that the delay in performing his herniorrhaphy was the
result of unnecessary or wanton acts. The district court did not err in dismissing
Cullum’s remaining claims of deliberate indifference pursuant to § 1915(e)(2)(B).
See Stewart, 174 F.3d at 534; see also Will v. Michigan Dep’t of State Police, 491
U.S. 58, 66 (1989) (recognizing that the Eleventh Amendment bars suits in
federal court by a citizen against agencies or departments of his state).
Cullum’s appellate brief makes no mention of his claims of retaliation or
the district court’s denial of the injunctive relief he sought based on those claims.
He has thus abandoned his claims for injunctive relief based on retaliation. See
Mapes v. Bishop, 541 F.3d 582, 584 (5th Cir. 2008). In any event, Cullum failed
to state a claim of retaliation because his pleadings contained no facts regarding
any specific acts by the defendants depriving him of medical treatment, much
less any facts from which it could plausibly be inferred that any such acts were
motivated by his filing of the instant suit. See Jones v. Greninger, 188 F.3d 322,
324-25 (5th Cir. 1999).
Because Cullum’s appeal is frivolous, it is DISMISSED. See Howard v.
King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5 TH C IR. R. 42.2. The dismissal of
this appeal as frivolous counts as a strike under § 1915(g). See Adepegba v.
Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). We CAUTION Cullum that if
he accumulates three strikes under § 1915(g), he will not be able to proceed IFP
in any civil action or appeal filed while he is incarcerated or detained in any
facility unless he is under imminent danger of serious physical injury. See
§ 1915(g).
4