* 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that this opinion should not be published and is not precedent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. 97-10362

 

VERLIE LEE HENDERSON,

Plaintiff-Appellant,

versus

TRACY BILLINGSLEA ET AL.,

Defendants-Appellees.

* * * * * * * * * * * * * *

VERLIE LEE HENDERSON,

 Plaintiff-Appellant,

versus

GARY L. JOHNSON ET AL.,

 Defendants-Appellees.

- - - - - - - - - -

Appeal from the United States District Court

for the Northern District of Texas

USDC Nos. 7:95-CV-50-X

 7:96-CV-30-X 

- - - - - - - - - -

June 30, 1998

Before JOLLY, HIGGINBOTHAM and DeMOSS, Circuit Judges.

PER CURIAM:*
No. 97-10362

-2-

Verlie Lee Henderson, Texas inmate #199786, seeks to proceed

in forma pauperis (IFP) in the appeal of the dismissal of his

civil rights complaint. The district court certified pursuant to

Fed. R. App. P. 24(a) that Henderson’s appeal was not taken in

good faith. Henderson’s motion for IFP is treated as a challenge

to the district court’s certification. See Baugh v. Taylor, 117

F.3d 197, 202 (5th Cir. 1997). 

As a preliminary matter, Appellees Mitchell and Woods argue

that this court lacks jurisdiction to entertain Henderson’s

motion for IFP on appeal because Henderson did not file a timely

notice of appeal from the district court’s summary judgment for

them. The summary judgment, however, was not a final order

inasmuch as the suit against Mitchell and Woods had been

consolidated with another suit in which Henderson’s claims

against those defendants remained. See Harcon Barge Co., Inc. v.

D&G Boat Rentals, Inc., 746 F.2d 278, 287-88 (5th Cir. 1984) (en

banc); Bader v. Atlantic Intern., Ltd., 986 F.2d 912, 914 (5th

Cir. 1993); Fed. R. Civ. P. 54(b). 

Henderson argues that the district court erred when it

dismissed his excessive-use-of-force claim against Officer

Billingslea as frivolous. Because the questions posed by the

district court to Henderson did not adduce why or in what manner

Billingslea struck Henderson, his excessive-use-of-force claim

may have merit. See Hudson v. McMillian, 503 U.S. 1, 6-7 (1992);

Baldwin v. Stalder, 137 F.3d 836, 840-41 (5th Cir. 1998). 
No. 97-10362

-3-

Accordingly, IFP is GRANTED. See Howard v. King, 707 F.2d 215,

220 (5th Cir. 1983). Given that the appellees have submitted a

brief, the dismissal of Henderson’s excessive-use-of-force claim

is VACATED and remanded for a hearing in accordance with Spears

v. McCotter, 766 F.2d 179 (5th Cir. 1985). See Wesson v.

Oglesby, 910 F.2d 278, 281 (5th Cir. 1990). Because Officer

Billingslea has not been served at this time, the district court

may need to consider dismissal of Henderson’s claim against him

for failure to prosecute.

Henderson’s failure-to-protect claim against Defendants

Mitchell and Borden may have merit depending on the facts

developed at the Spears hearing. See Neals v. Norwood, 59 F.3d

530, 533 (5th Cir. 1995); Farmer v. Brennan, 511 U.S. 825, 837

(1994). The district court should also consider whether its

earlier grant of summary judgment to Mitchell precludes

Henderson’s later-alleged allegations against that defendant. 

Accordingly, the dismissal of that claim is also VACATED and

REMANDED for further proceedings in the district court. 

Henderson argues that Defendants Smythe, Johnson, Stephens,

and Peterson are liable to him for failing to investigate the

alleged assault. These defendants are entitled to qualified

immunity on this claim because Henderson has not demonstrated a

“clearly established constitutional right” to have complaints

investigated. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1992);

Siegert v. Gilley, 500 U.S. 226, 231 (1991). The district
No. 97-10362

-4-

court’s dismissal of Henderson’s failure-to-investigate claim is

AFFIRMED.

Henderson does not argue on appeal, as he did in the

district court, that Defendants Scott, Johnson, McAuliffe,

Gilbert, Woods, Pulunsky, Stephens, Castro, and Eason are liable

to him for failing to train Officer Billingslea properly. 

Accordingly, his claim against those defendants is deemed

abandoned. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.

1993). 

 Henderson’s motion for the appointment of counsel is

DENIED. See Cupit v. Jones, 835 F.2d 82, 86 (5th Cir. 1987);

Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982). 

Henderson’s motion for a default judgment against Officer

Billingslea is also DENIED, as it should be brought in the

district court. 

Henderson’s motion to consolidate the instant motion with

his appeal in a suit against the Allred Medical Department for

inadequate medical care is DENIED.

The judgment of the district court is VACATED and REMANDED

in part; AFFIRMED in part; and Henderson’s motions are DENIED.