215 F. App'x 332
5th Cir.
2007

Matilde R. OLIVAS, Plaintiff-Appellant, v. CORRECTIONAL CORPORATION OF AMERICA, Defendant-Appellee.

No. 06-10208

United States Court of Appeals, Fifth Circuit.

Jan. 30, 2007.

Summary Calendar. Matilde R. Olivas, Mineral Wells, TX, pro se. Daniel Edward Pellar, Beirne, Maynard & Parsons, Houston, TX, for Defendant-Appellee.

PER CURIAM: *

Defendant-Appellant James Ray Ryan, federal prisoner # 32861-177, moves this court for a certificate of appealability (COA) following the district court‘s denial of his 28 U.S.C. § 2255 motion. In his motion, Ryan challenged the validity of his guilty plea to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Ryan also asserted that his counsel was ineffective for failing to file a notice of appeal, although he specifically requested that counsel do so.

A COA may issue only if Ryan makes “a substantial showing of the denial of a constitutional right.” See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). “The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits.” Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court‘s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Id. at 327, 123 S.Ct. 1029.

With respect to his challenge to the validity of his guilty plea, Ryan has failed to meet the standard required for the issuance of a COA. Accordingly, Ryan‘s motion for a COA is DENIED as to this issue. Ryan has, however, made a substantial showing of the denial of a constitutional right with respect to his claim that counsel was ineffective in failing to file a notice of appeal on his behalf. See Roe v. Flores-Ortega, 528 U.S. 470, 477, 483, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000). Because he alleges that he specifically requested that counsel file a notice of appeal, Ryan was not required to demonstrate that he would have presented merit worthy issues on appeal. See id. at 485, 120 S.Ct. 1029. Further, Ryan‘s § 2255 motion was made under penalty of perjury and was competent evidence supporting his claim. 28 U.S.C. § 1746; see Hart v. Hairston, 343 F.3d 762, 764 n. 1 (5th Cir. 2003). Because Ryan‘s § 2255 motion and the files and records of this case do not conclusively show that he is entitled to no relief, an evidentiary hearing was required. See United States v. Hughes, 635 F.2d 449, 451 (5th Cir.1981). Accordingly, it is ORDERED that Ryan‘s motion for a COA is GRANTED solely on the ineffective-assistance-of-counsel issue. The judgment is VACATED and the case REMANDED for further development in the district court.

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

PER CURIAM: *

Matilde R. Olivas appeals the district court‘s grant of summary judgment on his 42 U.S.C. § 1983 claim against the Correctional Corporation of America (“CCA“). As Olivas did not brief his state law claim against CCA on appeal, it is abandoned. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.1993); Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.1987).

We review the grant of a motion for summary judgment de novo. Cousin v. Small, 325 F.3d 627, 637 (5th Cir.2003). Contrary to Olivas‘s argument, CCA may not be held liable on a theory of respondeat superior. See Monell v. Dep‘t of Social Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Olivas also argues that CCA‘s dental care policy resulted in him receiving inadequate treatment for his injury. Olivas has not submitted evidence sufficient to demonstrate that the injury should have been treated as a medical emergency or that the treatment he received constituted deliberate indifference to his serious medical needs. See Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991). Further, Olivas does not show substantial harm related to the delay. See Mayweather v. Foti, 958 F.2d 91, 91 (5th Cir.1992). Therefore, summary judgment was proper in the instant case because Olivas has not established that an official policy or custom caused a constitutional violation. See Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir.2001).

Accordingly, the judgment is AFFIRMED.

Notes

*
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. 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.