* Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule

47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-40668

Summary Calendar

_____________________

JACKIE DON GARDNER,

Plaintiff-Appellant,

versus

BERNARD MALONE; DANNY PHILLIPS

and B. J. McCOY,

Defendants-Appellees.

_______________________________________________________

Appeal from the United States District Court for

the Eastern District of Texas

(3:94-CV-25)

_______________________________________________________

February 9, 1996

Before REAVLEY, SMITH and PARKER, Circuit Judges.

PER CURIAM:*

Jackie Don Gardner, proceeding pro se and in forma pauperis,

brought two § 1983 actions against Lamar County Jail medical

clerk Bernard Malone, Lamar County Jail “head jailer” Danny

Phillips, and Lamar County sheriff B.J. McCoy (“Defendants”). 

Gardner had been brought to the Lamar County Jail for violating

his parole. While there Gardner alleged he was denied medical

care in violation of the Eighth Amendment and was denied access
2

to the courts in violation of the First and Fourteenth

Amendments. The district court granted summary judgment for the

defendants, and then denied Gardner’s postjudgment “Motion for

Reconsideration of Summary Judgment.” Gardner now appeals. 

Because summary judgment was appropriate and because the district

court did not abuse its discretion in denying Gardner’s motion,

we affirm.

BACKGROUND

Gardner arrived at the Lamar County Jail as a parole

violator with a right arm amputation and a prosthetic arm. On

February 16, 1994, Gardner developed a knot on his stump and put

in a sick call request. Gardner asserts he was denied medical

attention for 37 days for the knot on his stump.

Gardner asked to go to the law library to find out what he

could do about this delay, but was told he did not have any case

pending and did not need access to a law library. On May 11,

1994, Gardner then filed his first suit under 42 U.S.C. § 1983

asserting a denial of access to a law library and deliberately

indifferent medical care.

On May 7, 1994, jail officials confiscated Gardner’s

prosthetic arm after a fight broke out at the jail. Gardner

asked that his stump be wrapped, and a Dr. Work ordered his stump

wrapped two days later. Gardner’s stump was wrapped three times

in the next week. Gardner, asserting it should have been wrapped

every day, again asked for access to a law library and was again

refused. On June 7, 1994 Gardner filed a second § 1983 suit
3

asserting inadequate medical care in not having his stump wrapped

daily and denial of access to a law library. The district court

consolidated the two complaints and referred the cases to a

magistrate.

The defendants filed a motion for summary judgment,

asserting the defense of qualified immunity. The magistrate

judge recommended that the motion be granted after determining

that the defendants had not been deliberately indifferent to

Gardner’s serious medical needs and that Gardner had not

demonstrated prejudice from the denial of access to a law

library. By order entered April 28, 1995, the district court

adopted the report and recommendation of the magistrate, granted

the defendants’ motion for summary judgment, and dismissed

Gardner’s claims with prejudice.

Gardner filed a “Motion for Reconsideration of Summary

Judgment” on May 22, 1995, reasserting his previous claims and

adding allegations of retaliation by jail officials for

exercising his right of access to the courts. The district court

initially ordered a hearing on the motion, but on reconsideration

vacated that order and denied Gardner’s motion. Gardner now

appeals.

DISCUSSION

We treat Gardner’s motion for reconsideration as a Rule

60(b) motion because it was filed more than ten days after the

entry of judgment. See Lavespere v. Niagara Mach. & Tool Works,

Inc., 910 F.2d 167, 173 (5th Cir. 1990), cert. denied, 114 S. Ct.
4

171 (1993). We review the district court’s decision denying the

motion for abuse of discretion. Carimi v. Royal Caribbean Cruise

Line, Inc., 959 F.2d 1344, 1345 (5th Cir. 1992). We review

summary judgment de novo. International Shortstop, Inc. v.

Rally’s, Inc., 939 F.2d 1257, 1263 (5th Cir. 1991), cert. denied,

502 U.S. 1059 (1992).

Denial of Adequate Medical Care

Gardner contends on appeal (and contended in his motion for

reconsideration) that the Lamar County Jail had no provisions for

handicapped prisoners, such as safety rails, controlled access to

showers, and non-skid floors, thus causing him to fall in the

shower, and that he received inadequate medical care for the

injury to his stump caused by his fall. He claims that the jail

failed to abide by the standards established under the Americans

with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq., and

that this failure constituted cruel and unusual punishment under

the Eighth Amendment. He also claims that his jailers and

inmates ridiculed and abused him due to his handicapped status.

These claims were raised for the first time in the motion

for reconsideration, however. In his initial complaint, Gardner

only alleged that he had been denied medical care for thirtyseven days for a “large knot” that had formed on his stump and

requested that “medical treatment [be] easier to get.” In his

supplemental complaint, Gardner alleged that his prosthetic arm

had been taken from him, that his stump was not being wrapped

daily as ordered by a doctor (but was instead wrapped only every
5

third or fourth day), that he had not been moved from the floor

to a bottom bunk as a doctor had ordered, and that he had been

denied medical treatment in February and March of 1994.

This court need not consider arguments that were raised for

the first time in a postjudgment motion. Hanchey v. Energas Co.,

925 F.2d 96, 99 (5th Cir. 1990); Fehlhaber v. Fehlhaber, 681 F.2d

1015, 1030 (5th Cir. 1982), cert. denied, 464 U.S. 818 (1983). 

An issue not properly preserved for appeal will not be considered

unless it is a purely legal one and the error is so obvious that

failure to consider it would result in a miscarriage of justice. 

Fehlhaber, 686 F.2d at 1030. Here the issues are factridden.

Nor can we say that the district court abused its discretion

when it denied Gardner’s postjudgment motion without holding a

Spears hearing on his new allegations. Gardner had ample

opportunity to raise these claims earlier in the proceedings.

As for his original claims, Gardner must prove that

officials acted with deliberate indifference to Gardner’s serious

medical needs. Wilson v. Seiter, 501 U.S. 294, 303 (1991). The

medical records submitted by the defendants demonstrate that

Gardner received medical care for all his various medical

complaints. The medical records demonstrate that his stump was

monitored by two different doctors and that Gardner received

antibiotics and treatment for the condition from the time he

first complained of the knot.

Gardner’s complaint that officer Malone wrapped the stump

only every three days rather than every day does not demonstrate
6

deliberate indifference to a serious medical need. The doctor

prescribed wrapping with an ace bandage. Malone did so. Gardner

complained about Malone’s technique and Malone was given

instruction by the doctor. The defendants are entitled to

summary judgment on Gardner’s medical care claims. 

Denial of Access to a Law Library

Prisoners have a constitutional right of access to the

courts, and that access must be adequate, effective, and

meaningful. Bounds v. Smith, 430 U.S. 817 (1977). Access to the

courts is protected by the First Amendment right to petition for

redress of grievances and the Fourteenth Amendment guarantees of

procedural and substantive due process. Jackson v. Procunier,

789 F.2d 307, 310-11 (5th Cir. 1986). This right can be

satisfied through appointed counsel, access to a law library, or

access to legally trained paraprofessionals. Bounds, 430 U.S. at

830-31. The right of access includes the ability to file a

legally sufficient claim. Morrow v. Harwell, 768 F.2d 619, 623

(5th Cir. 1985). The filing of a legally cognizable complaint

moots a right of access claim. Mann v. Smith, 796 F.2d 79, 84

(5th Cir. 1986).

In his complaints, Gardner claimed he was denied access to

the courts with regard to his medical care claims. Clearly,

however, the medical care claims were legally cognizable, and

under Mann summary judgment on the denial of access claims is

appropriate.
7

In his motion for reconsideration Gardner alleges he was

denied access not only for his medical care claims but also for

certain other legal matters, including a parole violation

revocation hearing, a social security claim, and a misdemeanor

charge of DWI-Second Offense. Gardner may have hinted at these

other legal matters in his objections to the magistrate’s report,

where he stated:

(10) Further The Petitioner Had Other Legal Interest (sic)

In Which He Requested Access, And Had He Been Allowed That

Access He Would Have Stated Those Interst (sic) As Well In

His Original Complaint, And The Petitioner Would Note That

In His Answer To The Defendants Motion For Summary Judgement

He Did In Fact Make Mention Of That Fact On Page Eight (8)

Section VIII By Stating That He Did Have Legal Interest In

Action At The Time Of Request.

The district court did not abuse its discretion in refusing

to consider the new facts alleged in Gardner’s objections or

postjudgment motion. See Macias v. Raul A., 23 F.3d 94, 97 (5th

Cir.), cert. denied, 115 S.Ct. 220 (1994) (a plaintiff who

clarifies his claims in his objections or a motion for

reconsideration is not entitled to have those claims considered

as amendments to his complaint). Courts are “bound by the

allegations in the complaint, and are not free to speculate that

the plaintiff ‘might’ be able to state a claim if given yet

another opportunity to add more facts to the complaint.” Id.

Retaliation

Gardner argues in his postjudgment motion that he was

retaliated against for exercising his right of access to the

courts. The allegations of retaliation include being put in

solitary confinement, being ridiculed and abused by guards and
 

1Relevant portions of that complaint read as follows:

(3) May 9 Dr Work asked that I be moved to a bottom bunk

and taken off the floor. Nothing was done untill May

31. Just before jail standards came to inspect the new

jail at that time I was placed in solitary confindment

(we get to shower and use phone after 6 p.m. only) I

was told this was the only bottom bunk in the jail. 

Also no TV or legal library.

(4) All my legal [mail] is open before it gets to me. . . .

(6) On May 14 I filed Civil Action No. 3.94cv25 because of

medical treatment. [the first complaint] On May 24,

1994 Judge William Wayne Justice assigned to your [the

magistrate’s] court. On June 1 1994 this letter was

returned to me opened this is the reason I was put in

Lock down.

8

inmates, and being denied medical care. Gardner’s stay in

solitary confinement lasted from June 1, 1994, until his transfer

to another facility on July 6, 1994.

If Gardner raised his retaliation claim for the first time

in his Rule 60(b) motion, as the jail officials argue, this court

need not consider the issue on appeal, see Hanchey, 925 F.2d at

99; Fehlhaber, 681 F.2d at 1030, and the district court did not

abuse its discretion in denying the motion on this ground.

It appears, however, that Gardner raised a retaliation claim

in his supplemental complaint of June 7, 1993, in which he

alleged that he was placed in solitary confinement the day after

jail officials discovered he had filed the first of his civil

rights suits.1

Nevertheless we cannot say that the district court abused

its discretion in denying his postjudgment motion. Gardner made

no mention of his retaliation claim in response to the

defendants’ motion for summary judgment or in his objections to

the magistrate’s report and recommendation. Nor has he made any
9

sworn statements, in his opposition to summary judgment or

otherwise, creating a genuine issue of material fact regarding

his retaliation claim. We cannot find an abuse of discretion in

the district court’s denial of Gardner’s motion. See Fehlhaber,

681 F.2d at 1030 (failure to brief and argue an issue is grounds

for finding that the issue has been abandoned).

CONCLUSION

Gardner’s appeal is without merit. He did not receive

deliberately indifferent medical care, he was not denied access

to the courts, and the district court did not abuse its

discretion in refusing to consider his retaliation claim and the

new factual allegations contained in his Rule 60(b) motion. The

judgment of the district court is affirmed.

AFFIRMED.