IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-40577

Summary Calendar

THOMAS JEFFREY STONE,

Plaintiff-Appellant

v.

DENNIS K. BLEVINS;MICHAELSIZEMORE; 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

United States Court of Appeals

Fifth Circuit

F I L E D

January 27, 2012

Lyle W. Cayce

Clerk

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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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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Case: 10-40577 Document: 00511739641 Page: 3 Date Filed: 01/27/2012