1 Spears v. McCotter, 766 F.2d 179 (5th Cir.1985).

1 United States Court of Appeals,

Fifth Circuit.

No. 93-1902

Summary Calendar.

Wayne Morris REEVES, Jr., Plaintiff-Appellant,

v.

James A. COLLINS, Director, Texas Dept. of Criminal Justice,

Institutional Division, et al., Defendants-Appellees.

Aug. 1, 1994.

Appeal from the Uni ted States District Court for the Northern

District of Texas.

Before SMITH, BARKSDALE and DeMOSS, Circuit Judges.

PER CURIAM:

Proc eeding pro se and i n forma pauperis (IFP), Wayne Morris

Reeves, Jr., a TDCJ inmate at the T.L. Roach Unit, filed a civil

rights complaint against TDCJ Director James Collins, Mr. M.

Spiers, and Mr. Stewart, detention officers at the Roach Unit. A

Spears 1 hearing was conducted by the magistrate judge to flesh out

the factual basis of the complaint. After testimony was completed

at the hearing, Reeves and counsel for the unserved defendants

signed a consent form for the magistrate judge to conduct all

further proceedings in the case, with any appeal to this Court. 28

U.S.C. § 636(c).

At the hearing, Reeves testi fied that, on July 4, 1992,

detention officers Spiers and Stewart ordered Reeves and inmate B.

Miles to clean the caulk ing in the floor of J-wing. Reeves2

informed the officers that he physically could not do the work due

to medical re strictions from an earlier back injury. Spiers

threatened Reeves with a disciplinary report for failure to obey a

direct order if he failed to do the cleaning. As Reeves worked at

the cleaning job, his back began to hurt. The officers kept

telling the two inmates to continue working without stopping, even

after Reeves informed them of his pain.

At some point, Reeves left his work to speak with Sergeant

Daughty concerning the propriety of the assignment in light of

Reeves' medical restrictions and pain. Daughty told Reeves that he

must obey an officer's orders, unless compliance would be life

threatening, or be subject to discipline, and that any problem with

the work order could be addressed later if needed. Reeves returned

to cleaning the floor. Daughty told Reeves that he would check

into the medical restrictions, but Daughty failed to do so, as did

Spiers and Stewart.

While Reeves continued with this work, his pain increased. At

some point, he developed pain in his lower abdomen. Reeves finally

left J-wing after he observed the formation of a lump on his

abdomen. The subsequent medical examinations revealed that Reeves

had a hernia. Reeves testified that, if any one of these officers

had checked into his medical restrictions, the onset of the hernia

could have been avoided.

Dr. Revell, a physici an with TDCJ, also testified at the

hearing, reviewing for the court the medical files on Reeves and

explaining how medical restrictio ns are recorded in the files.3

Reeves testified that, after a fall from his bunk in May 1992, he

was told by the examining physician that restrictions would be

placed on him which would limit his physical exertions. Reeves

agreed that no such restrictions were noted in his medical files

and therefore, were not available for the officers to check, if the

officers had been inclined to do so. Further, Reeves testified

that during a phy sical examination on an unrelated ailment weeks

after the back injury, he told the examining physician that he was

not experiencing any back pain from working.

After the Spears hearing and before the magistrate judge

dismissed the complaint, Reeves filed an amended complaint. Reeves

added Sergeant Murry to the list of defendants. In this complaint,

Reeves alleged that he and inmate Miles, after reporting to work

late, were ordered by Spiers and Stewart to clean the caulking in

J-wing's flooring. Reeves informed them of his back problem and

the medical restrictions. The inmates began to clean, each inmate

doing the work standing. They took an unauthorized break. The

officers ordered them back to work. Spiers took away Reeves' broom

and handed him

a wooden palm scrubber to use. Reeves again

informed him of the medical restrictions, to no avail. Shortly

after beginning the new scrub work, Reeves began to experience

lower back pain. Soon after that, both inmates took their lunch

break.

During his lunch break, Reeves spoke with Sgt. Murry, not

Daughty, concerning his w ork duty and his back pain. Murry told

him to obey the order unless compliance was life threatening.4

After lunch, Reeves wor k ed twenty minutes before experiencing

severe back pains. He went to his cell to rest from the pain.

Spiers ordered him to return to work. When Reeves indicated that

he was going to the infirmary, Spiers threatened to issue a

disciplinary report on Reeves, thus preventing Reeves from leaving

for the infirmary. Within 30 minutes of this incident, during

"count-time," Reeves rested by his cell in severe pain. Spiers

ordered him to return to work despite Reeves' assertions of pain.

For the next 90 minutes or so, Reeves scrubbed the floor,

taking short breaks in an effort to manage the pain. Reeves felt

an intense, severe pain in his abdomen, and he needed physical

assistance from another inmate to get to his cell. Reeves notified

Spiers that he needed to rest. Reeves walked to the infirmary and

was stopped by Spiers, who inquired if the scrubbing was completed.

Spiers again threatened Reeves with disciplinary reports if he left

the building. Reeves ignored the threats and proceeded to the

infirmary where the nurse informed him of the possible hernia.

Reeves was not permitted to return to work. On July 7th, the

physician diagnosed the hernia, a nd surgery was performed in

August. Surgery revealed the ailment to be a double hernia.

In his order of dismissal, the magistrate judge noted the

contradictions in the facts between Reeves' amended or supplemental

complaint and his Spears te stimony. Under either scenario of

facts, the magistrate judge concluded that Reeves had alleged

negligence against the officers, thus failing to state a civil

rights cause of action. The magistrate judge dismissed the2 Reeves could not serve the objections on the defendants

because the defendants were never served with the complaint.

3 The facts restated in the appellate brief resemble the

facts found in the amended complaint.

5 complaint as frivolous.

Reeves filed a motion for leave to file a supplemental

complaint in order to add Head Nurse/Medical Administrator K. Allen

to the list of defendants for her alleged unauthorized changes to

Reeves' medical classification. Within ten days from entry of

judgment, he also filed 2 objections to the dismissal, before filing

h is notice of appeal. These objections included Reeves'

allegations against Allen as to facts occurring in September 1992.

The magistrate judge, construing the objections as "a motion to

reconsider and to vacate," denied the motion. The order

specifically noted that Reeves' a ttempts to supplement his claim

after judgment by adding allegations were futile.

An IFP complaint may be dismissed as frivolous if it lacks an

arguable basis in law or fact. D enton v. Hernandez,

--- U.S. ----,

----, 112 S.Ct. 1 728, 1733, 118 L.Ed.2d 340 (1992). This Court

reviews the dismissal for abuse of discretion. I d.,

--- U.S. at

--

--, 112 S.Ct. at 1734. Reeves does not argue that Collins is

liable as a defendant. Therefore, to the extent that supervisory

liability was an issue in this case, it has been abandoned on

appeal. See Eason v. Thaler, 14 F.3d 8, 9 n. 1 (5th Cir.1994).

Reeves argues that in his facts, 3 he has alleged del iberate

indifference on the part of the three defendants, Spiers, Stewart,

and Murry. "[D]eliberate indifference to serious medical needs of6

pri soners constitutes the "unnecessary and wanton infliction of

pain' proscribed by the Eighth Amendment.... whether the

indifference is manifested by prison doctors or by prison guards in

intentionally deny i ng or delaying access to medical care...."

Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S.Ct. 285, 291 , 50

L.Ed.2d 251 (1976) (citation and footnotes omitted).

The Supreme Court recently adopted "subjective recklessness as

used in the criminal law" as the appropriate definition of "

"deliberate indifference' under the Eighth Amendment." Farmer v.

Brennan,

--- U.S. ----, ----, 114 S.Ct. 1970, 1980,

--- L.Ed.2d

---

- (1994).

[A] prison official ca nnot be found liable under the Eighth

Amendment ... unless the official knows of and disregards an

excessive risk to inmate health or safety; the official must

both be aware of facts from which the inference could be drawn

that a substantial risk of serious harm exists, and he must

also draw the inference.

Id. at ----, 114 S.Ct. at 1979. Under exceptional circumstances,

a prison official's knowledge of a substantial risk of harm may be

inferred by the obviousness of the substantial risk. See id., at

---- and n. 8, 114 S.Ct. at 1981-82 and n. 8.

Under the facts alleged by Reeves, in either ve rsion, this

standard is not met. Even if the officers had checked to see if

medical restrictions had been placed on Reeves for his back, Reeves

agreed that the records did not state such restrictions, whether by

inadvertence or intention of the medical care providers. Moreover,

there was no indication at the time, besides Reeves' assertions of

pain, that Reeves had a hernia. As such, the officers' disregard

of Reeves' assertions of pain, in light of Reeves' allegations of7

repeatedly returning to work, taking short breaks to reli eve the

pain, and finally going to the infirmary when the pain became

unbearable, amounts to no more than negligence. S ee Johnson v.

Treen, 759 F.2d 1236, 1238 (5th Cir.1985) (defining "wanton").

To the extent that Reeves argues that Spiers and Stewart

violated TDCJ policy by failing to inquire into his medical

restrictions and by disciplining Reeves for lateness by giving him

the scrubbing job, this issue was not raised in the district court.

T his Court will not address this issue for the first time on

appeal. See Murray v. Anthony J. Bertucci Constr. Co., Inc., 958

F.2d 127, 128 (5th Cir.), cert. d enied, --- U.S. ----, 113 S.Ct.

190, 121 L.Ed.2d 134 (1992).

Therefore, the district court did not abuse its discretion in

dismissing the complaint for frivolousness. See Denton, --- U.S.

at ----, 112 S.Ct. at 1734.

Reeves argues that Head Nurse/Medical Administrator Allen is

liable for various acts and omissions. Allen was not named as a

defendant when the district court dismissed the complaint for

frivolousness.

Entry of final judgment was September 7, 1993, although the

magistrate judge signed the judgment on September 3, 1993. Reeves'

motion seeking leave to supplement his complaint was mailed on

August 31, 1993, but was filed on the day that final judgment was

entered. Reeves also filed objections to the dismissal of his

complaint, objections which included reference to Allen's

culpability, and calling into question the correctness of the8

magistrate judge's dismissal. The magistrate judge construed the

objections as a "motion to reconsider and to vacate," and he denied

t he motion, after Reeves had filed notice of appeal. Within the

magistrate judge's order denying the order, he noted that Reeves'

attempts to supplement his claim after judgment, attempts including

the motion for leave to file a supplemental complaint, were futile.

Reeves did not file a second notice of appeal.

Under former Fed.R.App.P. 4(a)(4), this Court would lack

jurisdiction over the entire appeal because Reeves failed to file

notice of appeal after entry of the order disposing of his motion

which was, liberally construed, a Fed.R.Civ.P. 59(e) motion. See

Harcon Barge Co., Inc. v. D & G Boat Rentals, Inc., 784 F.2d 665,

668 (5th Cir.), c ert. denied, 479 U.S. 930, 107 S.Ct. 398, 93

L.Ed.2d 351 (1986); s ee also Craig v. Lynaugh, 846 F.2d 11, 13

(5th Cir.1988) (if service of process has not occurred, and "[i]f

a judgment has been enter ed, a Rule 59(e) motion, or its legal

equivalent, filed within 10 days after the date of entry of

j udgment is timely even though it has not been served on the

defendants"). Although notice of appeal was filed before the

effective date of the new rules of appellate procedure, this Court

will appl y retroactively the new rules when it is just to do so.

See Burt v. Ware, 14 F.3d 256, 258-60 (5th Cir.1994). As such,

under new Rule 4(a)(4), this Court has jurisdiction over the final

judgment, but the new rule requires "[a] party intending to

challenge an alteration or amendment of the judgement

... [to] file

an amended notice of appeal" in order to appeal that alteration.9

See Rule 4(a)(4).

The order and judgment di smissing Reeves' complaint did not

encompass any allegation or cause of action against Allen. The

order denying reconsideration covered these allegations. Because

Reeves failed to amend his notice of appeal, his arguments covering

these allegations are not properly before this Court.

AFFIRMED.