* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published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.

1 Bivens v. Six Unknown Fed. Narcotics Agents , 403 U.S. 388 (1971).

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-50745

Summary Calendar

EARL ELLERY WRIGHT,

Plaintiff-Appellant,

versus

LIEUTENANT MILLER , Correctional Supervisor,

Defendant-Appellee,

----------------------------

EARL ELLERY WRIGHT,

Plaintiff-Appellant,

versus

UNITED STATES OF AMERICA,

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of Texas

A-94-CV-121 & A-94-CV-179

August 29, 1996

Before JOLLY, JONES and STEWART, Circuit Judges.

PER CURIAM: *

Earl Wright, a federal prisoner, has appealed the dismissal of his Bivens 1 action for damages.

Additionally, the appellees moved to correct the title of the appeal to name Warden Hedrick as a

defendant, and Wright moves to expedite the appeal. For the following reasons, we reverse summary

judgment for the defendants, grant the motion to correct the title, and deny the motion to expedite2

the appeal.

FACTS

Appellant Earl Wright, is a 64-year-old federal prisoner serving a fift y-year sentence for bank

robbery. He filed two actions for damages in September 1994, which the district court consolidated.

In No. A-94-CA-121, a Bivens suit, Wright alleged that he was entitled to damages because

defendant Lt. Miller, the officer in charge of transferring Wright from Bastrop, Texas to Florence,

Col orado, required him to wear leg-irons during the trip although Wright informed him that he could

not wear leg-irons because of a condition documented in his medical file. The leg-irons would cause

his legs to swell and, consequently, restrict his ability to walk.

In No. A-94-CA-179, Wright named the United States as the sole defendant. He asserted that

this was a “Federal Tort Claim” based on his alleged loss of an album containing 120 personal

photographs. When Wright was transferred to Tennessee from FCI Bastrop for a court appearance,

he allegedly left the album with another inmate, Earl Gregg. Following a shakedown, Wright alleged,

unknown members of the custodial staff destroyed the album as contraband. Wright also realleged

his leg-iron claim.

The defendants filed a motion to dismiss for failure to state a claim or for summary judgment,

with affidavits of Miller, Warden Hedri ck, and others. After de novo review, the district court

adopted the magistrate judge’s report and granted the defendants’ motion to dismiss or for summary

judgment.

DISCUSSION

A. DISMISSAL AND SUMMARY JUDGMENT.

Wright contends that he is entitled to damages because Miller mad e him wear leg-irons2 We note that Wright’s allegations remove this case from the deliberate ind ifference analysis

dictated by the F armer v. Brennan

, 114 S. Ct. 1970 (1994) line of cases. Wright is not claiming

deliberate indifference to a medical need. Instead, Wright argues that Miller acted intentionally and

maliciously when placing the leg restraints on him for security purposes. The intent allegation places

this case under Whitley v. Albers

, 475 U.S. 320 (1986). S ee Farmer.

, 114 S. Ct. at 1978 (explaining

as follows: “‘application of the deliberate indifference standard is inappropriate’ in one class of cases:

when ‘officials stand accused of using excessive physical force.’

. . .’[T]he very high state of mind

prescribed by Whitley does not apply to prison conditions cases.’”); see also

, Madrid v. Gomez

, 889

F. Supp. 1146, 1247 (N.D. Cal. 1995) (“Although the deliberate indifference standard governs most

claims, an even higher degree of culpability must be shown in one type of claim: when an inmate seeks

to hold an individual prison officer liable for using excessive physical force against the inmate during

a particular incident.”).

3 “‘maliciously and sadistically for the very purpose of causing harm,’” in vio lation of his Ei ghth

Amendment right to be free f ro m cruel and unusual punishment. S ee Whitley v. Albers

, 475 U.S.

312, 320-21 (1986) (citation omitted). 2

One of the grounds for the district court’s dismissal of the consolidated actions was failure

to state a claim. This court "review[s] d e novo the district court's dismissal of a complaint for failure

to state a claim." F ernandez-Montes v. Allied Pilots Ass'n

, 987 F.2d 278, 284 (5th Cir. 1993). We

hold that the district court incorrectly dismissed No. A-94-CA-121 for failure to state a claim; Wright

adequately alleged a constitutional tort committed by Miller, a federal officer. S ee Davis v. Passman

,

442 U.S. 228, 233-34 (1979). The facts alleged by Wright, if true, show that Miller’s intentional use

of the leg-irons “involve[d] the wanton and unnecessary inflict ion of pain,” in violation of the Eighth

Amendment. Gregg v. Georgia

, 428 U.S. 153, 173 (1976). Nevertheless, the district court’s error

in dismissing for failure to state a claim is harmless because, as will be discussed, summary judgment

was appropriate on all claims except Wright’s Bivens claim against Miller. See Fed. R. Civ. P. 61.

However, the district court was correct in dismissing Wright’s claim in No. A-94-CA-179 based on4

the same facts, because constitutional torts are not actionable under the FTCA. S ee FDIC v. Meyer

,

510 U.S. 471, 114 S. Ct. 996, 1001 (1994).

The district court also granted summary judgment to the defendants. This court's standard

of review of a summary-judgment ruling is the same as the district court's, and it must be based on

the evidence which was presented in the district court. S ee Little v. Liquid Air Corp.

, 37 F.3d 1069,

1075-76 (5th Cir. 1994) (en banc); Sanders v. English , 950 F.2d 1152, 1159 (5th Cir. 1992).

Miller contends, inter alia

, that he is entitled to qualified immunit y. We must examine (1)

whether Wright has alleged the violation of a clearly established constitutional right, and (2) whether

reasonable public o fficials could differ on the lawfulness of their actions. Hassan v. Lubbock Indep.

Sch. Dist.

, 55 F.3 d 1075, 1079 (5th Ci r.), c ert. denied

, 116 S. Ct. 532 (1995). If Wright "fails to

tender the requisite summary judgment evidence that the individual defendants violated a clearly

established constitutional right," however, we do not need to engage in the second inquiry. Id.

Miller would be entitled to qualified immunit y if he could establish that his use of leg restraints

on Wright “could plausibly have been thought necessary” or that he did so in good faith to maintain

order, i.e.

, security. S ee Whitley

, 475 U.S. at 321, 320-21. Miller stated in his affidavit that he

looked at Wright’s Form 149, which includes any medical information r elevant to an inmate’s

transfer, and “found no annotation [sic] addressing the use of leg restraints.” He also indicated that

upon observing that Wright’s legs looked a bit discolored, he decided to place “flex-cuffs” made of

soft plastic, rather than restraints made of metal, on Wright, and removed them during the overnight

stopovers. Miller stated that Wright did not complain about his legs to him during the trip.

In his controverting affidavit , Wright asserted that he informed Miller of the medical5

restriction and complained that the leg-irons would cause his legs to swell t o a point in which he

co uld hardly walk. Wright also avers that Miller threatened him, and thereafter he refrained fro m

complaining to Miller. Prior to leaving Bastrop, Wright says that when Lt. Wynn told Miller that no

restraints were to be used on Wright’s legs, Miller replied that Wright would not leave Bastrop

without leg-irons. The affidavit further states that he complained about his legs upon arrival at FCI

El Reno on the evening of March 23 to a physician’s assistant, who noted on paper the following:

“legs swollen, no leg irons to be used.”

The documents filed by the defendants present conflicting evidence. The copy of Wright’s

Form 149 for this trip states in part: “Do Not Use Hard Restraints on Legs for Transfer.” A page

from Wright’s medical record states that on March 26, at FCI Florence, he complained of his swollen

ankles. The notation for March 26 reads “traumatic oedema,” and the notation for March 29

provides “edema and pain on both feet.” On the other hand, stamped on the form under “Progress

Notes Enroute” is the following note which appears to have been init ialed by a physician’s assistant:

“Reviewed at FCI El Reno, Okla[.] No Medical Complaints.”

We find that the disputed factual matters in this case preclude summary judgment in favor of

Miller on these facts as a Bivens claim. They include (1) whether he applied soft restraints or legirons; (2) whether he knew of the restriction stated in Wright's Form 149 and/or in his medical record;

(3) whether he threatened Wright in order to suppress further complaints; and (4) whether he made

Wright wear leg-irons on the morning of March 24, despite Wright’s protests. Thus, the district

court should not have granted the defendants’ motion for summary judgment.

B. RESPONDEAT SUPERIOR.6

Warden Hedrick contends that he is entitled t o affirmance on grounds, i nter alia

, that he

cannot be held liable vicariously on a theory of respondeat superior. Wright does not contest this

ruling. We agree that Hedrick cannot be held vicariously liable. T hompkins v. Belt

, 828 F.2d 298,

303 (5th Cir. 1987).

C. PHOTOGRAPH ALBUM LOSS.

Wright requested that this Court hear his complaint concerning his claim for the alleged loss

of his album and photos, but he fails to argue the point. Because Wright has not briefed the issue,

it is waived. S ee Weaver v. Puckett

, 896 F.2d 126, 128 (5th Cir.), cert. denied

, 498 U.S. 966 (1990).

Thus, we will not consider this claim.

D. CAPTION CORRECTION.

Appellees have moved to correct the title of this appeal to show that Warden Hedrick is an

appellee. Wright’s response acknowledges that he named Hedrick as a defendant in case No. A-94-

CV-121). Wright does not oppose the motion; therefore, we grant the motion to correct the title.

E. EXPEDITED APPEAL.

Wright has filed a motion to expedite the appeal. Because the briefs have been filed and we

are handling this case via summary disposition, there is no need to expedite the appeal. S ee Court

Policy 14(h)(2)(a). Accordingly, this motion is moot.

CONCLUSION

The grant of summary judgment to appellee Lt. Miller is RE VERSED, because there are

contested issues of material fact. The district court's dismissal of Wright's claims against appellees

Warden Bill Hedrick and the United States are AFFIRMED. The motion to include Hedrick’s name7

in the caption of this appeal is GRANTED. The court will not consider whether the district court

e rred by dismissing Wright's claim based on the alleged loss of his photograph album, because his

failure to brief this point has resulted in waiver.