                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                     F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                                                                       May 29, 2003
                         FOR THE FIFTH CIRCUIT
                                                                 Charles R. Fulbruge III
                                                                         Clerk

                                No. 02-21044
                              Summary Calendar



     ROBERT M. FENLON,

                                                 Plaintiff-Appellant,

           versus

     TOMMY THOMAS, Sheriff;
     UNKNOWN DEPUTY SHERIFFS, 1 to 99;
     JOHN DOES, 100-120,

                                                 Defendants-Appellees.




           Appeal from the United States District Court
                for the Southern District of Texas
                       USDC No. H-01-CV-4271



Before GARWOOD, JOLLY and SMITH, Circuit Judges.

PER CURIAM:*

     Robert    M.   Fenlon,   Texas   prisoner    #01015511,    appeals      the

district   court’s    grant   of   summary   judgment   in   favor     of    the

defendants, dismissing his 42 U.S.C. § 1983 complaint in which

Fenlon alleged that he was denied constitutionally adequate medical

care and is now blind in his right eye as a result.


     *
      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opinion should not be published and is not precedent except under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.
     Fenlon first challenges the procedure followed by the district

court, arguing that the district court erred in granting summary

judgment in favor of Sheriff Thomas individually because Thomas

neither answered nor moved for summary judgment in his individual

capacity.   District courts, however, “possess the power to enter

summary judgments   sua   sponte,”       a   power   limited   only   “by   the

requirement to provide prior notice.” Leatherman v. Tarrant county

Narcotics Intelligence and Coordination Unit, 28 F.3d 1388, 1397

(5th Cir. 1994) (citations omitted).            The matters asserted and

contentions made in Thomas’s motion placed Fenlon on adequate

notice that he had to come forward with all of his evidence against

Thomas individually (as well as in his official capacity), and the

district court agreed with Fenlon that his suit against Thomas was

an “individual capacity” claim.          Therefore, the district court’s

summary judgment was procedurally correct.

     Second, Fenlon argues that the district court’s grant of

summary judgment was in error as Fenlon submitted competent summary

judgment evidence raising a genuine issue of material fact.             “This

court reviews the grant of [a] summary judgment de novo, using the

same criteria used by the district court in the first instance.”

Fraire v. City of Arlington, 957 F.2d 1268, 1273 (5th Cir. 1992).

Contrary to Fenlon’s contentions, Thomas addressed in his motion

Fenlon’s claim that under prison policy, prisoners had to wait

sixty days or more in order to obtain eye care treatment, with no


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exception for urgent care.    The affidavit of Bobby Davis attached

to Thomas’s motion specifically spoke to this issue.           Moreover,

Fenlon’s assertion that his allegations present a “condition of

confinement” case is similarly without merit.          Fenlon complained

that the prison’s medical staff ignored his urgent requests to see

the optometrist, and that the prison’s sixty-day backlog for

optometry appointments allegedly permitted the staff’s action and

omissions.     Such   allegations   set   forth   an   “episodic   act   or

omission” case as set forth in Scott v. Moore, 114 F.3d 51 (5th

Cir. 1997) (en banc).    Moreover, and in any event, Fenlon fails to

demonstrate how his claim would meet the requirements for a valid

“condition of confinement” case.

     Although the affidavit Fenlon submitted in opposition to

Thomas’s summary judgment motion was competent summary judgment

evidence under 28 U.S.C. § 1746, it did not create a genuine issue

of material fact as to Fenlon’s claims.           Fenlon’s conclusional

allegations and unsubstantiated assertions regarding prison policy

are insufficient to establish a genuine issue of material fact.

See Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)

(en banc).    The only evidence Fenlon has submitted in support of

his assertion that Thomas implemented an unconstitutional policy

denying inmates emergency eye care are the facts surrounding his

own case.    Fenlon has adduced no evidence that other inmates were

denied emergency eye care “or that the sheriff was otherwise


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actually   informed   or   consciously   believed   that   the   [prison’s

medical] policy would expose prisoners to substantial risk of

significantly unmet serious medical needs.” Thompkins v. Belt, 828

F.2d 298, 305 (5th Cir. 1987).    Thus, assuming arguendo that Fenlon

did not receive constitutionally adequate medical care, Thomas

still “cannot be held liable on the theory that he implemented an

unconstitutional policy when the record below indicates no more

than that the system may have failed in the one particular instance

of [Fenlon’s eye] injury.”     Id. (footnote omitted).

     Based on the foregoing, we conclude that the district court

did not err in granting summary judgment, and its judgment is

                               AFFIRMED.




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