### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 12

- 31001 Summary Calendar

LEWIS E. BROWN , Plaintiff

− Appellant ,

v ersus BURL CAIN, Warden; JONATHON ROUNDTREE, Doctor; DONALD BARR, Assistant Warden; MARY LABATU, LSP E mployee and Pharmacist , Defendant s − Appellee s .

Appeal from the United States District Court for the Middle District of Louisiana No. 3:11

- CV

- 103

Before JOLLY, SMITH, and CLEMENT, Circuit Judges. PER CURIAM: *

* Pursuant to 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED November 4, 2013 Lyle W. Cayce Clerk Case: 12-31001 Document: 00512429207 Page: 1 Date Filed: 11/04/2013No. 12

- 31001 Lewis Brown, Louisiana prisoner # 73428 , appeals a summary judgment , the denial of his cross - motion for summary judgment , and the dismissal of his 42 U.S.C. § 1983 action

. He additionally moves for a preliminary injunction and/or a temporary restraining order (“TRO”) and to dispense with the security requirement of Federal Rule of Appellate Procedure 8(a)(2)(E).

I. In February 2011, Brown filed a pro se § 1983 action against Warden Burl Cain, Assistant Warden Donald Barr, Dr. Jonathon Roundtree, and Mary Labatut, a pharmacist. 1 He claimed that, starting in 2003, the defendants failed to p rovide him with his daily aspirin prescription on a regular basis; he received no aspirin from December 2008 to June 2009; and his prescription was filled incorrectly in March 2010. In addition, Brown maintained that, as a result, his condition deteriorat ed , resulting in a fall in Ju ne 2010 , he fractured his hip , and the treatment of his hip was delayed

. 2 In granting summary judgment and dismiss ing Brown’s § 1983 action, the district court found that all of Brown’s claims arising before February 23, 2010, were barred by limitations

. T he court found that Brown was not entitled to relief as to his allegations against Laba tut because the undisputed evidence showed she w as on leave . As to the allega tions that Cain, Barr, and Roundtree were liable for the actions of their subord inates, the court found the m insuf fi

cient to state a claim under § 1983.

1 Th e name i s spelled as both “Labatut” and “Labatu” in the record. W e have adopted the spelling used in the district court by Labatut ’s attorney

.

2 Brown has alleged, at times, that this claim arose in Ju ly 2010 ; a t other times, he has alleged that it arose i n Ju ne 2010. Because the prison medical records suggest the claim arose in J une 2010 , we have used th at date

.
2 Case: 12-31001 Document: 00512429207 Page: 2 Date Filed: 11/04/2013No. 12

- 31001 In dismissing the claim that Roundtree acted with deliberate indif fer

ence to Brown’s hip fracture , t he court found that the undisputed evidence showed B rown had received prompt evaluation, treatment, and medication. Finally, as to the official

- capacity claims against Cain and Barr, the court found that Brown had not sought prospective injunctive relief , so his claims were not actionable.

II. On appeal from a summary judgment, this court conducts a de novo review, employing the same standard used by the district court. McFaul v. Val enzuela , 684 F.3d 564, 571 (5th Cir. 2012). A court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any mate

rial fact and the movant is entitled to judgment as a matter of law.” F ED

. R. C IV

. P . 56(a).

A. For actions brought pursuant to § 1983, federal courts borrow the forum state’s personal

- injury limitations period. Har ris v. Hegmann , 198 F.3d 153, 156

- 57 (5th Cir. 1999). In Louisiana that period is one year. Id . at 158; L A

. C IV

. C ODE A NN

. art. 3492. Brown argues that some of his claims arose during the year before he filed his § 1983 complaint and thus a re not time

- barred. Brown ’s § 1983 action , initiated in February 20 1 1 , ra is ed claims arising from acts starting in 2003 and, also, claims arising between December 1, 2008, and June 2009, in March 2010, and in Ju ne 2010. Brown is correct that his claim that the def endants provided him with the wrong quantity and dosage of aspirin i n March 2010 and his claim that the defendants delayed treatment for his fractured hip in June 2010 are not time

- barred because they arose during

3 Case: 12-31001 Document: 00512429207 Page: 3 Date Filed: 11/04/2013No. 12

- 31001
the year before he filed his § 1983 compla int. The district court’s opinion is

con sistent with this particular argument. As for Brown’s remaining § 1983 claims that, starting in 2003, the defen

dants failed to provide him with aspirin regularly and then provided no aspirin from December 2008 t o June 2009, Brown concedes that any claims arising before April 13, 2009 , are prescribed. Absent an exception to the one

- year limi

tations period, the claims arising between April 14, 2009, and the end of June 2009 are time

- barred. Although, as Brown says , the filing of a prison grievance may toll limi

tations while the grievance is pending, Brown filed his § 1983 action too long after his grievance proceeding ended to benefit from any tolling. See Harris , 198 F.3d at 158

− 59

. With the benefit of libe ral construction , Brown also argues that the defendants’ behavior constituted a continuing tort. Brown’s claims , however, do not constitute continuing torts because he did not allege continu

ous wrongful conduct “on an almost daily basis

. ” 3 Accordingly, claims arising between April 14, 2009, and the end of June 2009 are time

- barred

.

B. Brown does not dispute the findings regarding when Laba tut was work

ing at the prison. Instead, he contend s in a conclus ional fash ion that Labatut should remain a defendant because she was responsible for “ensur ing pharma

ceutical services” both before and after her leave. Because , however, the c ourt properly found that the claims arising before February 23, 2010, were time

barred and because Brow n’s remaining claims arose when the undisputed

3 Lizotte v. Leblanc , 456 F. App’x 511, 512 (5th Cir.) (per curiam) , cert. denied , 133 S. Ct. 39 (2012) ; El d redge v. Martin Marietta Corp ., 207 F.3d 737, 743 (5th Cir. 2000).

4 Case: 12-31001 Document: 00512429207 Page: 4 Date Filed: 11/04/2013No. 12

- 31001 evidence showed Labatut was not working, the court properly granted sum

mary judgment as to the claims against Labatut. 4 Brown additionally argues that the district court erred in dismissing his claims agains t Labatut because Brown sought prospective injunctive relief against Labatut. But in his original and amended complaint s , Brown did not seek prosp ective injunctive relief against Labatut

.

C. Although the district court found Brown’s claims against Cain, Barr, and Dr. Roundtree barred by the doctrine of respondeat superior , Brown argues that h is § 1983 complaint included allegations against these defendants for their own failure to provide a constitutionally adequate medication

- delivery
sys tem in the prison and for their refusal to correct known deficiencies in the
sys tem

. In Brown’s original and amended § 1983 complaints, h e indicate d that he sought to hold Cain, Barr, and Roundtree responsible for both the actions of others and their own actions

. T o the extent Brown sought to hold Cain, Barr, and Roundtree liable for the actions of their subordinates, the district court is correct that such claims are insufficient to state a claim for relief under § 1983. See Sanders

- Burns v. City of Plano , 594 F. 3d 366, 380 (5th Cir. 2010). To the extent Brown sought to hold Cain, Barr, and Roundtree liable for their own actions concerning the allegedly inadequate medication

- delivery system, the dis t rict court provided no analysis

. A supervisor may be liable for involvement in a constitu tional depri va tion. Thompkins v. Belt , 828 F.2d 298, 304 (5th Cir. 1987). S upervisory

4 See Hathaway v. Bazany , 50 7 F.3d 312, 319 (5th Cir. 2007); see also Koch v. Puckett , 907 F.2d 524, 530 (5th Cir. 1990) (stating that “ mere conclusory allegations on a critical issue a re insufficient to raise a constitutional issue ” ) (internal quotation marks and citation omitted))

. 5 Case: 12-31001 Document: 00512429207 Page: 5 Date Filed: 11/04/2013No. 12

- 31001 liability may exist under § 1983 “without overt personal participation in the offensive act if supervisory officials implement a policy so deficient that the pol icy itself is a repudiation of constitutional rights and is the moving force of the constitutional violation.” Id . (internal quotation marks and citation omit

ted). A policy may be a “statement, ordinance, regulation, or decisio n that is officially adopted” by an official who has policymaking author ity or a “persis

tent, widespread practice” that is not formally authorized but “is so common and well settled as to constitute a custom that fairly represents . . . policy.” Johnson v. Moore , 958 F.2d 92, 94 (5th Cir. 1992) (internal quota tion marks and citation omitted). Knowledge of a custom must be attributable to a policymaker. Id

. The evidence in the record, including the affidavits of Cain, Barr, and Roundtree, the answers to interrogatories, a prison job description , prison poli

cies discussing policymaking and the training of staff , and the affidavits of Brown and other inmates, establish es genuine d isputes as to material facts

con cerning whether a policy or widespread p ractice in the prison medication

delivery system resulted in the violation of Brown’s constitutional rights. See Thompkins , 828 F.2d at 304; Johnson , 958 F.2d at 94. Accordingly, summary judgment on such claims wa s improper. See F ED

. R. C IV

. P . 56(a). Brown argues that , contrary to the district court’s findings, Roundtree delayed treatment of his hip fracture in violation of the Constitution. A delay in treatment does not violate the Eighth Amendment unless the denial or delay was the result of the d efendant ’ s deliberate indifference and harm was suffered during the delay. Easter v. Powell , 467 F.3d 459, 464−65 (5th Cir. 2006). The eviden ce in the record, including the prison medical records, Round

tree’s affidavit and answers to interrogatories, a nd Brown’s declarations , estab lish es genuine disputes as to material facts concerning whether there was

6 Case: 12-31001 Document: 00512429207 Page: 6 Date Filed: 11/04/2013No. 12

- 31001 a delay

. See Easter , 467 F .3d at 464

- 65; Mendoza , 989 F.2d at 195

. Accord

ingly, summary judgment dismissal of Brown’s deliberate

- indifference claim against Roundtree was improper

. See F ED

. R. C IV

. P . 56(a).

D

. Brown argues that the district court erroneously dismissed his official

capacity claims against Cain and Barr because , contrary to the court’s findings, he sought prospec tive injunctiv e relief against Cain and Barr by seeking the removal of unqualified, inadequately trained security employees from the medication

- distribution system and the use of ade quately qualified and medi

cally trained personnel. Although Brown did no t seek prospective injunctive relief against Cain and Barr in his origin al § 1983 complaint , he sought it in his amended complaint in addition to seeking various other amendment s, including clarifying the capacities in which Cain and Barr were being sued

. In granting Brown’s motion to amend, in part, the magistrate judge (“MJ”) s pecified that Brown could amend to clarify the capacities in which Cain and Barr were being sued. Later, in a report and recommendation to the dis

trict court, the MJ interpreted th at order, stating that, but for permitting Brown to clarify the se ca pacities a nd issuing other unrelated rulings , he had denied the motion in all other respects; consequently, the MJ concluded that Brown had not sought prospective injunctive relief against Cain and Barr. The district court’s later adoption of the MJ ’s interpretation of the order was not

an abuse of discretion. See Francois v. City of New Roads , 459 F. App’x 475, 478 (5th Cir. 2012). Accordingly, the court properly dismissed Brown’s official

capacity complaints against Cain and Barr.

7 Case: 12-31001 Document: 00512429207 Page: 7 Date Filed: 11/04/2013No. 12

- 31001

E

. Brown argues generally that the MJ ’ s report and recommendation omit

ted some of his claims, cited partial stan dards of law, took arguments out of context, omitted record facts and evi dence, and selectively used the evidence to cast an unfavorable light o n his claims. He has iden tified no such errors with specificity , so he has abandoned th o se claims o n appeal. See Yohey v. Collins , 985 F.2d 222, 224

− 25 (5th Cir. 1993).

F

. Brown cla ims the district court failed to rule on his objections to the suf

ficiency of certain answers and discovery responses and that he needed the evi dence to show deliberate indifference to his medical needs. Discovery is not a prerequisite to the dispositi on of a motion for summary judgment. Wash

ington v. Allstate Ins. Co ., 901 F.2d 1281, 1285 (5th Cir. 1990). A party who

con tends that additional discovery is required before summary judgment may file a motion for a continuance under Federal Rule of Ci vil Procedure 56(d) ( for merly Rule 56(f) ) together with an affidavit showing, for spe cified reasons, that he c annot present essential facts. 5 T he party may not rely on “vague

asser tions that additional discovery will produce needed, but unspe cified facts” 6 but instead must “set forth a plaus ible basis for believ ing that spe cified facts, sus ceptible of collection within a reasonable time, probably exist and indi cate how the emergent facts, if adduced, will influence the outcome of the

5 Castro v. Tex

. Dep’t of Criminal Justice , No. 12

- 0584 , 2013 WL 5229972, at *2 & n.3 (5th Cir. Sept. 18, 2013); F ED

. R. C IV

. P . 56(d).

6 Raby v. Livingston , 600 F.3d 552, 561 (5th Cir. 2010) (internal quotation marks and cita tion omitted)

.

8 Case: 12-31001 Document: 00512429207 Page: 8 Date Filed: 11/04/2013No. 12

- 31001 pending s ummary judgment motion

. ” 7 A decision whether to delay summary judgment for further dis cov ery is reviewed for abuse of discretion. Raby , 600 F.3d at 561. Because Brown failed to file a Rule 56(d) motion and because his motion for an exten sion of tim e to complete discovery did not specify what facts, susceptible of col lec tion, would influence the outcome of his case, the court did not abuse its dis cretion by grant ing summary judgment without further discov ery. See id.

I II

. For the foregoing re asons, we AFFIRM the summary - judgment dismis

sal of Brown ’s claims arising before February 201 0 ; the claims against Labatut; the respondeat superior claims against Cain, Barr, and Roundtree ; and the offi

cial

- capacity claims against Cain and Barr

. We VACATE and REMAND as to the dismissal of Brown’s claims against Cain, Barr, and Roundtree regarding the prison

- medication

- delivery system and his claims against Roundtree regard ing the hip

- fracture treatment. We DENY Brown’s motions for a p relim

inary i njunction and/or a TRO and his motion to dispense with the requirement of security because he did not move for injunctive relief in the district court and has not shown that application for such relief would be impracticable. See F ED

. R. A PP

. P. 8(a)(1)(C ), (2)(A). We state no view on the ultimate merit of any claim or on what decisions or rulings the district court should make on remand.

7 I d . (internal quotation marks and citation omit ted); see also Castro , 2013 WL 5229972, at *2 n.6 (observing that courts have required the party to expl ain how the addi

tional discovery might create a factual dispute precluding summary judgment dismissal).

9 Case: 12-31001 Document: 00512429207 Page: 9 Date Filed: 11/04/2013