Case: 22-40466 Document: 81-1 Page: 1 Date Filed: 03/27/2024
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-40466 FILED
Summary Calendar March 27, 2024
____________ Lyle W. Cayce
Clerk
Chester Finney, Sr.,
Plaintiff—Appellant,
versus
Unknown Nurse; Bobby Lumpkin, Director, Texas Department of
Criminal Justice, Correctional Institutions Division,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 3:19-CV-140
______________________________
Before Jones, Southwick, and Ho, Circuit Judges.
Per Curiam: *
Chester Finney, Sr., Texas prisoner # 1493956, appeals from the
dismissal of his pro se 42 U.S.C. § 1983 suit as frivolous and for failure to
state a claim. See 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b)(1). Finney claims
that prison officials violated his constitutional rights by failing to protect him
from an assault committed by another inmate. He also argues that an
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 22-40466
unnamed prison nurse was deliberately indifferent to his serious medical
needs by failing to provide adequate treatment for his spine after the assault.
This court reviews dismissals under § 1915(e)(2)(B) and
§ 1915A(b)(1) de novo, applying the same standard as when reviewing the
grant of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6).
DeMoss v. Crain, 636 F.3d 145, 152 (5th Cir. 2011). Dismissal is appropriate
where a complaint does not “contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). “[E]ven for pro se plaintiffs . . . conclusory allegations or legal
conclusions masquerading as factual conclusions will not suffice to state a
claim for relief.” Coleman v. Lincoln Par. Det. Ctr., 858 F.3d 307, 309 (5th
Cir. 2017) (internal quotation marks and citation omitted).
As an initial matter, in the district court, Finney did not name as a
defendant the prison guard he claims ran from the room when he was
assaulted. Thus, we do not consider his allegations against her on appeal. See
Hannah v. United States, 523 F.3d 597, 600 n.1 (5th Cir. 2008). Further,
because he did not brief the issue, Finney has abandoned any argument that
the district court erred by failing to consider the prison guard as a defendant
or by failing to allow him to amend his complaint to add her as a defendant.
See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). To the extent
Finney continues to assert that Brian Collier, the former director of the
TDCJ, was responsible as a supervisor, the district court correctly
determined that Finney failed to sufficiently allege that Collier affirmatively
participated in acts or implemented policies that caused the alleged
constitutional violations. See Porter v. Epps, 659 F.3d 440, 446 (5th Cir. 2011).
Regarding Finney’s claims against the nurse who evaluated him after
the fight, prison officials infringe the Eighth Amendment’s proscription
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No. 22-40466
against cruel and unusual punishment by engaging in “deliberate indifference
to a prisoner’s serious medical needs, constituting an unnecessary and
wanton infliction of pain.” Easter v. Powell, 467 F.3d 459, 463 (5th Cir.
2006) (internal quotation marks and citation omitted). Finney’s pleadings
state that when he complained of back pain and requested an X-ray and a
palpitation of his spine, the unnamed nurse merely touched his back in the
wrong place and declined to provide further evaluation or treatment.
According to his pleadings, Finney could barely walk when he was in
administrative segregation after the incident and when he was evacuated days
later, and he was eventually diagnosed with the beginning stages of scoliosis
after X-rays were performed. However, as the district court found, Finney
failed to sufficiently allege facts demonstrating that the unnamed nurse was
actually aware of and consciously disregarded a need for further evaluation
or treatment. See Lawson v. Dallas Cnty., 286 F.3d 257, 262 (5th Cir. 2002).
In this regard, Finney alleged that he saw the nurse only once after the
incident, and he did not plead facts indicating that the nurse was aware of any
visible injury or physical symptoms that immediately necessitated the testing
that Finney requested.
For the foregoing reasons, the district court’s judgment is
AFFIRMED. Finney’s motion for appointment of counsel is DENIED.
See Cooper v. Sheriff, Lubbock Cnty., 929 F.2d 1078, 1084 (5th Cir. 1991). As
the district court explained, its dismissal of Finney’s complaint counts as a
strike under § 1915(g). See Coleman v. Tollefson, 575 U.S. 532, 537-39 (2015).
Finney is CAUTIONED that, if he accumulates three strikes, he will not
be allowed to proceed in forma pauperis 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).
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