     Case: 17-50239      Document: 00514628379         Page: 1    Date Filed: 09/05/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit
                                    No. 17-50239                               FILED
                                  Summary Calendar                      September 5, 2018
                                                                          Lyle W. Cayce
                                                                               Clerk
CHARLES DAVID BROOKS,

                                                 Plaintiff-Appellant

v.

JOHN R. KELLY,

                                                 Defendant-Appellee


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:13-CV-353


Before REAVLEY, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Charles David Brooks, Texas prisoner # 1043239, filed a 42 U.S.C. § 1983
complaint alleging that defendant-guard John R. Kelly repeatedly kicked the
“bean-slot” of Brooks’s cell and injured his left arm. Brooks also alleged that
other prison officials violated prison policy, failed to stop Kelly, engaged in a
conspiracy to cover up Kelly’s wrongdoing, or were deliberately indifferent.
The district court dismissed the official capacity claims for lack of subject-


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 17-50239

matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). It
dismissed the other claims against most defendants for failure to state a claim
pursuant to Federal Rule of Civil Procedure 12(b)(6). The district court later
granted Kelly’s motion for summary judgment.
      As an initial matter, Brooks has waived a number of his claims by failing
to brief them, including his claims against the defendants in their official
capacities, his claims that the defendants violated prison policies, and his
claims that the defendants engaged in a conspiracy to cover up Kelly’s conduct.
See Brinkmann v. Dallas Cty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987); Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).
      Brooks briefly argues that the district court erred by dismissing his
claims against two defendants for failing to stop Kelly. With the benefit of
liberal construction, see Haines v. Kerner, 404 U.S. 519, 520 (1972), we view
this as a failure-to-protect claim. However, Brooks failed to allege sufficient
facts to show that he was “incarcerated under conditions posing a substantial
risk of serious harm and that prison officials were deliberately indifferent to
his need for protection.” Neals v. Norwood, 59 F.3d 530, 533 (5th Cir. 1995).
      Turning to the grant of summary judgment for Kelly, we first conclude
that Brooks’s failure to object to the magistrate judge’s report limits our review
to plain error. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-
29 (5th Cir. 1996) (en banc), superseded by statute on other grounds, 28 U.S.C.
§ 636(b)(1). To show plain error, Brooks must show a forfeited error that is
clear or obvious and that affects his substantial rights. See Puckett v. United
States, 556 U.S. 129, 135 (2009). If he makes such a showing, this court has
the discretion to correct the error but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. See id.




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                                  No. 17-50239

      “When opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable jury could believe
it, a court should not adopt that version of the facts for purposes of ruling on a
motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380-81 (2007).
In granting summary judgment, the district court focused on whether the
alleged wrongdoing was objectively harmful enough to constitute a
constitutional violation, found that Brooks had provided only conclusory
allegations and unsupported assertions to establish an injury, and found that
his allegations were blatantly contradicted by prison medical records. On
appeal, Brooks repeats his otherwise unsupported assertions that he suffered
severe bruising, a swollen finger, and constant pain. His only direct response
to the submitted medical records is to argue that the failure to document his
injuries is “on the medical department.” We conclude that Brooks has not
shown that the district court plainly erred in finding that he failed to establish
an injury harmful enough to constitute a constitutional violation or that the
district court plainly erred in granting summary judgment for Kelly.
      AFFIRMED.




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