* 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that this opinion should not be published and is not precedent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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 99-41294

Summary Calendar

 

PAUL DOUGLAS KELLY,

Plaintiff-Appellant,

versus

WAYNE SCOTT, Etc.; ET AL.,

Defendants,

WAYNE SCOTT, Executive Director, Texas Department of

Criminal Justice; JIM SHAW, Regional Director, Texas

Department of Criminal Justice, Institutional Division;

JAMES G. McGEE, Plant Manager, Meat Packing Plant;

BOBBY G. BRITT, Plant Maintenance, Meat Packing Plant;

MAURIS WAYNE ENGLEDOW, Industrial Supervisor; DAVID C.

BREWSTER, Industrial Supervisor,

Defendants-Appellees.

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

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 6:99-CV-267

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

December 13, 2000

Before DAVIS, JONES, and DeMOSS, Circuit Judges.

PER CURIAM:*

Paul Douglas Kelly, Texas prisoner #711287, appeals from the

dismissal of his 42 U.S.C. § 1983 complaint as frivolous and for

failure to state a claim. Kelly contends that the magistrate

judge erred by dismissing his complaint without requiring the

defendants to testify about their normal operating procedures;
No. 99-41294 

-2-

that the magistrate judge erred by dismissing his claims

regarding deliberate indifference to his work safety; that the

magistrate judge erred by holding that the delay in obtaining

medical care for his foot did not constitute deliberate

indifference; that the magistrate judge erred by not appointing

counsel to represent him; that the magistrate judge failed to

construe his complaint liberally; and that the magistrate judge

failed to question those present at his Spears v. McCotter, 766

F.2d 179 (5th Cir. 1985), hearing sufficiently to determine

whether his complaint was frivolous or failed to state a claim.

Kelly does not brief whether the magistrate judge erred by

holding that Executive Director Wayne Scott and Regional Director

Jim Shaw could not be held vicariously liable. He has failed to

brief the dispositive issue for appeal regarding Scott and Shaw. 

Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744,

748 (5th Cir. 1987). The dismissal of Scott and Shaw is

AFFIRMED.

Regarding Kelly’s claim against Meat Packing Plant Manager

James G. McGee for the work accident, Kelly alleged in his

complaint that he sought to hold McGee liable for failing to

ensure a safe working environment and failing to ensure qualityassurance inspections; he did not allege any specific facts in

his complaint or his Spears testimony relevant to his workaccident claim against McGee. Conclusional allegations are

insufficient to give rise to an action under 42 U.S.C. § 1983. 

Macias v. Raul A. (Unknown), Badge No. 153, 23 F.3d 94, 99 (5th
No. 99-41294 

-3-

Cir. 1994). The dismissal of the workplace-safety claim against

McGee is AFFIRMED.

Kelly alleged in his complaint and his Spears hearing

testimony that he had experienced an accident involving the angle

irons in June 1998; that he had reported that accident to

Industrial Supervisor Mauris Wayne Engledow and Industrial

Supervisor David C. Brewster; that Engledow and Brewster had

indicated that the problem would be addressed; and that Plant

Maintenance Manager Bobby G. Britt would have been notified by

Engledow and Brewster in the normal course of events. If Kelly’s

allegations are true, the problem with the protruding angle irons

was not fixed by August, when Kelly experienced the accident that

crushed and severely lacerated his foot. Nor was Kelly provided

with safety instruction relevant to his job or instruction

regarding the particular forklift he alleged he was driving on

the day of the second accident. Kelly has alleged facts giving

rise to a nonfrivolous claim that Engledow, Brewster, and Britt

were deliberately indifferent to his work safety. See Jackson v.

Cain, 864 F.2d 1235, 1245 (5th Cir. 1989). The dismissal of

Kelly’s work-accident claim as to Engledow, Brewster, and Britt

as frivolous and for failure to state a claim therefore was

erroneous. If Kelly can prove, as he has alleged, that these

defendants knew of a substantial risk of serious harm and

disregarded that risk by failing to take reasonable measures to

abate it, then he can recover. See Farmer v. Brennan, 511 U.S.

825, 847 (1994). The dismissal of the suit as to Engledow,

Brewster, and Britt with regard to the claim of deliberate
No. 99-41294 

-4-

indifference to workplace safety is REVERSED, and this claim is

REMANDED for further proceedings.

Neither Kelly’s complaint nor his Spears hearing testimony

suggested that the one-hour delay resulted in substantial harm to

Kelly. See Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir.

1993). Moreover, the complaint and the Spears treatment

indicated that McGee was negligent for failing to call for an

ambulance. Such negligence does not give rise to an Eighth

Amendment violation. Varnado v. Lynaugh, 920 F.2d 320, 321 (5th

Cir. 1991). The magistrate judge did not err by dismissing

Kelly’s medical-treatment claim as frivolous and for failure to

state a claim. The dismissal of the medical-treatment claim

against McGee is AFFIRMED.

There is no automatic right to appointment of counsel in a

civil rights case. Ulmer v. Chancellor, 691 F.2d 209, 212 (5th

Cir. 1982). The district court has the discretion to appoint

counsel if doing so would advance the proper administration of

justice. Id. Kelly did not request counsel in the district

court, and the correct outcome in Kelly’s case could have been

determined from the pleadings and the Spears testimony. The

magistrate judge did not abuse her discretion in failing to

appoint counsel sua sponte. The record indicates that the

magistrate judge construed Kelly’s complaint accurately and that

she conducted the Spears hearing in a manner designed to flesh

out Kelly’s claims. See Spears, 766 F.2d at 181-82. Kelly’s

procedural contentions therefore are unavailing.

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.