Marco CARROTHERS, Plaintiff-Appellant v. Lawrence KELLY, Superintendent; Stanley Flagg, Associate Warden; Ricky Scott, Internal Audit Division; Mary Craft, Case Manager; Christopher Epps, Commissioner; Dr. John Bearry; Medical Director; Larry Hill; Dr. Santos, Defendants-Appellees.
No. 07-60883
United States Court of Appeals, Fifth Circuit.
Feb. 23, 2009.
Summary Calendar.
Also, Farris’ assertion that the district court “exclusively” relied upon his prior arrest record to determine his sentence mischaracterizes the record. Regardless whether an arrest record is an irrelevant or improper factor to consider when determining where within a properly calculated guidelines range a sentence should fall, in this case the district court provided extensive reasons explaining its sentencing decision. Our reading of the record indicates that, although the district court mentioned Farris’ arrest record, the district court did not exclusively rely upon the arrest record and did not give significant weight to the arrest record. Farris has not shown that the district court abused its discretion by imposing a sentence within the advisory guidelines range. See United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United States v. Nikonova, 480 F.3d 371, 376 (5th Cir.), cert. denied, — U.S. —, 128 S. Ct. 163, 169 L. Ed. 2d 112 (2007). Finally, as Farris concedes, his argument that the district court plainly erred by ordering that his sentence run consecutive to state sentences that were not yet imposed is foreclosed by United States v. Brown, 920 F.2d 1212, 1216-17 (5th Cir. 1991), abrogated on other grounds by United States v. Candia, 454 F.3d 468, 472-73 (5th Cir. 2006).
AFFIRMED.
John Lewis Clay, Office of the Attorney General for the State of Mississippi, Leonard Charlton Vincent, Mississippi Department of Corrections Staff Attorney‘s Office, Jackson, MS, for Defendants-Appellees.
Before KING, GARWOOD and BARKSDALE, Circuit Judges.
PER CURIAM:*
Marco Carrothers, Mississippi prisoner # 65329, appeals the summary judgment dismissal of his
Carrothers argues that his Eighth Amendment rights were violated when he was stabbed by a fellow inmate, specifically alleging that defendant Ricky Scott knew the inmate was a threat to Carroth
Prison records contradict Carrothers‘s testimony at the hearing on his motion for preliminary injunction that both he and Scott knew the offending inmate was a threat to his safety. Those records reveal that Carrothers gave a statement to officials shortly after his stabbing indicating that he did not anticipate the attack, that he never had problems with his attacker, and that he had played cards and checkers with him without incident.
Prison records additionally evince that Scott did not order Craft to reclassify Carrothers and house him in the same unit as his attacker. The records establish that decision was made by the classification committee based on the results of an investigation that revealed Carrothers was a known gang member and a validated security threat. Carrothers has supported his failure-to-protect claim with only his conclusional testimony regarding the defendants’ knowledge that the offender posed a threat to his safety, and conclusional allegations or unsubstantiated assertions do not create a fact issue on summary judgment. See Warfield v. Byron, 436 F.3d 551, 557 (5th Cir. 2006).
Carrothers also alleged that defendant Larry Hill was deliberately indifferent to his health and safety when Hill fled the tier while Carrothers was being stabbed. An officer‘s failure to take reasonable measures to protect an inmate from excessive force can give rise to
Carrothers additionally argues that Dr. John Bearry was deliberately indifferent to his serious medical need, a nerve injury secondary to the stab wounds, when Bearry failed to follow through with his plan to refer Carrothers to a specialist. To establish deliberate indifference to his serious medical needs, Carrothers must present evidence showing that he was refused treatment, his complaints were ignored, or he was intentionally treated incorrectly in utter disregard for his serious medical needs. See Domino v. Texas Dep‘t of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001).
The evidence supports the conclusion that Dr. Bearry did not follow through with his plan to refer Carrothers to either an orthopedist or a neurosurgeon. Nevertheless, the medical evidence does not show that there is a genuine issue as to whether, in so doing, Dr. Bearry was intentionally refusing to treat Carrothers or ignoring his complaints. At best, the evi
Insofar as Carrothers complains that he did not receive additional physical therapy sessions, he has failed to raise a cognizable
Finally, Carrothers‘s claim regarding the treatment for his rash also amounts to nothing more than a disagreement over the medical care received. The medical records establish that he was repeatedly treated for his rash both before and after his stabbing and was prescribed several different drugs over the course of that treatment. These facts do not rise to the level of deliberate indifference. See Domino, 239 F.3d at 756.
Insofar as Carrothers argues that the district court erred in denying his motions for leave to amend, to compel discovery, to sanction the defendants, and to reschedule the viewing of his x-rays, he has shown no abuse of discretion. See Jacobsen v. Osborne, 133 F.3d 315, 318 (5th Cir. 1998); Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 817 (5th Cir. 2004). He has similarly shown no abuse of discretion with regard to the district court‘s decision to allow the failure-to-protect defendants to file an out-of-time summary judgment motion, see Huval v. Offshore Pipelines, Inc., 86 F.3d 454, 458 (5th Cir. 1996), or its decision to deny his
AFFIRMED.