     Case: 12-31001      Document: 00512429207         Page: 1    Date Filed: 11/04/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT    United States Court of Appeals
                                                      Fifth Circuit

                                                                                FILED
                                                                           November 4, 2013
                                    No. 12-31001
                                  Summary Calendar                           Lyle W. Cayce
                                                                                  Clerk




LEWIS E. BROWN,

                                                 Plaintiff−Appellant,

versus

BURL CAIN, Warden; JONATHON ROUNDTREE, Doctor;
DONALD BARR, Assistant Warden;
MARY LABATU, LSP Employee and Pharmacist,

                                                 Defendants−Appellees.




                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                                 No. 3:11-CV-103




Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM: *


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
     Case: 12-31001      Document: 00512429207         Page: 2    Date Filed: 11/04/2013


                                      No. 12-31001

       Lewis Brown, Louisiana prisoner # 73428, appeals a summary judgment,
the denial of his cross-motion for summary judgment, and the dismissal of his
42 U.S.C. § 1983 action. He additionally moves for a preliminary injunction
and/or a temporary restraining order (“TRO”) and to dispense with the security
requirement of Federal Rule of Appellate Procedure 8(a)(2)(E).


                                             I.
       In February 2011, Brown filed a pro se § 1983 action against Warden
Burl Cain, Assistant Warden Donald Barr, Dr. Jonathon Roundtree, and Mary
Labatut, a pharmacist. 1 He claimed that, starting in 2003, the defendants
failed to provide him with his daily aspirin prescription on a regular basis; he
received no aspirin from December 2008 to June 2009; and his prescription was
filled incorrectly in March 2010. In addition, Brown maintained that, as a
result, his condition deteriorated, resulting in a fall in June 2010, he fractured
his hip, and the treatment of his hip was delayed. 2
       In granting summary judgment and dismissing Brown’s § 1983 action,
the district court found that all of Brown’s claims arising before February 23,
2010, were barred by limitations. The court found that Brown was not entitled
to relief as to his allegations against Labatut because the undisputed evidence
showed she was on leave. As to the allegations that Cain, Barr, and Roundtree
were liable for the actions of their subordinates, the court found them insuffi-
cient to state a claim under § 1983.




       1 The name is spelled as both “Labatut” and “Labatu” in the record. We have adopted
the spelling used in the district court by Labatut’s attorney.

       2 Brown has alleged, at times, that this claim arose in July 2010; at other times, he
has alleged that it arose in June 2010. Because the prison medical records suggest the claim
arose in June 2010, we have used that date.


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                                No. 12-31001

      In dismissing the claim that Roundtree acted with deliberate indiffer-
ence to Brown’s hip fracture, the court found that the undisputed evidence
showed Brown had received prompt evaluation, treatment, and medication.
Finally, as to the official-capacity claims against Cain and Barr, the court
found that Brown had not sought prospective injunctive relief, so his claims
were not actionable.


                                      II.
      On appeal from a summary judgment, this court conducts a de novo
review, employing the same standard used by the district court. McFaul v.
Valenzuela, 684 F.3d 564, 571 (5th Cir. 2012). A court “shall grant summary
judgment if the movant shows that there is no genuine dispute as to any mate-
rial fact and the movant is entitled to judgment as a matter of law.” FED. R.
CIV. P. 56(a).


                                      A.
      For actions brought pursuant to § 1983, federal courts borrow the forum
state’s personal-injury limitations period. Harris v. Hegmann, 198 F.3d 153,
156-57 (5th Cir. 1999). In Louisiana that period is one year. Id. at 158; LA.
CIV. CODE ANN. art. 3492. Brown argues that some of his claims arose during
the year before he filed his § 1983 complaint and thus are not time-barred.
      Brown’s § 1983 action, initiated in February 2011, raised claims arising
from acts starting in 2003 and, also, claims arising between December 1, 2008,
and June 2009, in March 2010, and in June 2010. Brown is correct that his
claim that the defendants provided him with the wrong quantity and dosage of
aspirin in March 2010 and his claim that the defendants delayed treatment for
his fractured hip in June 2010 are not time-barred because they arose during



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the year before he filed his § 1983 complaint. The district court’s opinion is
consistent with this particular argument.
       As for Brown’s remaining § 1983 claims that, starting in 2003, the defen-
dants failed to provide him with aspirin regularly and then provided no aspirin
from December 2008 to June 2009, Brown concedes that any claims arising
before April 13, 2009, are prescribed. Absent an exception to the one-year limi-
tations period, the claims arising between April 14, 2009, and the end of June
2009 are time-barred.
       Although, as Brown says, the filing of a prison grievance may toll limi-
tations while the grievance is pending, Brown filed his § 1983 action too long
after his grievance proceeding ended to benefit from any tolling. See Harris,
198 F.3d at 158−59. With the benefit of liberal construction, Brown also argues
that the defendants’ behavior constituted a continuing tort. Brown’s claims,
however, do not constitute continuing torts because he did not allege continu-
ous wrongful conduct “on an almost daily basis.” 3 Accordingly, claims arising
between April 14, 2009, and the end of June 2009 are time-barred.


                                              B.
       Brown does not dispute the findings regarding when Labatut was work-
ing at the prison. Instead, he contends in a conclusional fashion that Labatut
should remain a defendant because she was responsible for “ensuring pharma-
ceutical services” both before and after her leave. Because, however, the court
properly found that the claims arising before February 23, 2010, were time-
barred and because Brown’s remaining claims arose when the undisputed




       3 Lizotte v. Leblanc, 456 F. App’x 511, 512 (5th Cir.) (per curiam), cert. denied, 133 S.
Ct. 39 (2012); Eldredge v. Martin Marietta Corp., 207 F.3d 737, 743 (5th Cir. 2000).


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evidence showed Labatut was not working, the court properly granted sum-
mary judgment as to the claims against Labatut. 4
       Brown additionally argues that the district court erred in dismissing his
claims against Labatut because Brown sought prospective injunctive relief
against Labatut. But in his original and amended complaints, Brown did not
seek prospective injunctive relief against Labatut.


                                              C.
       Although the district court found Brown’s claims against Cain, Barr, and
Dr. Roundtree barred by the doctrine of respondeat superior, Brown argues
that his § 1983 complaint included allegations against these defendants for
their own failure to provide a constitutionally adequate medication-delivery
system in the prison and for their refusal to correct known deficiencies in the
system. In Brown’s original and amended § 1983 complaints, he indicated that
he sought to hold Cain, Barr, and Roundtree responsible for both the actions
of others and their own actions. To the extent Brown sought to hold Cain, Barr,
and Roundtree liable for the actions of their subordinates, the district court is
correct that such claims are insufficient to state a claim for relief under § 1983.
See Sanders-Burns v. City of Plano, 594 F.3d 366, 380 (5th Cir. 2010). To the
extent Brown sought to hold Cain, Barr, and Roundtree liable for their own
actions concerning the allegedly inadequate medication-delivery system, the
district court provided no analysis.
       A supervisor may be liable for involvement in a constitutional depriva-
tion. Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir. 1987). Supervisory


       4 See Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007); see also Koch v. Puckett,
907 F.2d 524, 530 (5th Cir. 1990) (stating that “mere conclusory allegations on a critical issue
are insufficient to raise a constitutional issue”) (internal quotation marks and citation
omitted)).


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                                  No. 12-31001

liability may exist under § 1983 “without overt personal participation in the
offensive act if supervisory officials implement a policy so deficient that the
policy itself is a repudiation of constitutional rights and is the moving force of
the constitutional violation.” Id. (internal quotation marks and citation omit-
ted). A policy may be a “statement, ordinance, regulation, or decision that is
officially adopted” by an official who has policymaking authority or a “persis-
tent, widespread practice” that is not formally authorized but “is so common
and well settled as to constitute a custom that fairly represents . . . policy.”
Johnson v. Moore, 958 F.2d 92, 94 (5th Cir. 1992) (internal quotation marks
and citation omitted).    Knowledge of a custom must be attributable to a
policymaker. Id.
      The evidence in the record, including the affidavits of Cain, Barr, and
Roundtree, the answers to interrogatories, a prison job description, prison poli-
cies discussing policymaking and the training of staff, and the affidavits of
Brown and other inmates, establishes genuine disputes as to material facts
concerning whether a policy or widespread practice in the prison medication-
delivery system resulted in the violation of Brown’s constitutional rights. See
Thompkins, 828 F.2d at 304; Johnson, 958 F.2d at 94. Accordingly, summary
judgment on such claims was improper. See FED. R. CIV. P. 56(a).
      Brown argues that, contrary to the district court’s findings, Roundtree
delayed treatment of his hip fracture in violation of the Constitution. A delay
in treatment does not violate the Eighth Amendment unless the denial or delay
was the result of the defendant’s deliberate indifference and harm was suffered
during the delay. Easter v. Powell, 467 F.3d 459, 464−65 (5th Cir. 2006).
      The evidence in the record, including the prison medical records, Round-
tree’s affidavit and answers to interrogatories, and Brown’s declarations,
establishes genuine disputes as to material facts concerning whether there was



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                                 No. 12-31001

a delay. See Easter, 467 F.3d at 464-65; Mendoza, 989 F.2d at 195. Accord-
ingly, summary judgment dismissal of Brown’s deliberate-indifference claim
against Roundtree was improper. See FED. R. CIV. P. 56(a).


                                      D.
      Brown argues that the district court erroneously dismissed his official-
capacity claims against Cain and Barr because, contrary to the court’s findings,
he sought prospective injunctive relief against Cain and Barr by seeking the
removal of unqualified, inadequately trained security employees from the
medication-distribution system and the use of adequately qualified and medi-
cally trained personnel. Although Brown did not seek prospective injunctive
relief against Cain and Barr in his original § 1983 complaint, he sought it in
his amended complaint in addition to seeking various other amendments,
including clarifying the capacities in which Cain and Barr were being sued.
      In granting Brown’s motion to amend, in part, the magistrate judge
(“MJ”) specified that Brown could amend to clarify the capacities in which Cain
and Barr were being sued. Later, in a report and recommendation to the dis-
trict court, the MJ interpreted that order, stating that, but for permitting
Brown to clarify these capacities and issuing other unrelated rulings, he had
denied the motion in all other respects; consequently, the MJ concluded that
Brown had not sought prospective injunctive relief against Cain and Barr. The
district court’s later adoption of the MJ’s interpretation of the order was not
an abuse of discretion. See Francois v. City of New Roads, 459 F. App’x 475,
478 (5th Cir. 2012). Accordingly, the court properly dismissed Brown’s official-
capacity complaints against Cain and Barr.




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                                      No. 12-31001

                                             E.
       Brown argues generally that the MJ’s report and recommendation omit-
ted some of his claims, cited partial standards of law, took arguments out of
context, omitted record facts and evidence, and selectively used the evidence
to cast an unfavorable light on his claims. He has identified no such errors
with specificity, so he has abandoned those claims on appeal. See Yohey v.
Collins, 985 F.2d 222, 224−25 (5th Cir. 1993).


                                             F.
       Brown claims the district court failed to rule on his objections to the suf-
ficiency of certain answers and discovery responses and that he needed the
evidence to show deliberate indifference to his medical needs. Discovery is not
a prerequisite to the disposition of a motion for summary judgment. Wash-
ington v. Allstate Ins. Co., 901 F.2d 1281, 1285 (5th Cir. 1990). A party who
contends that additional discovery is required before summary judgment may
file a motion for a continuance under Federal Rule of Civil Procedure 56(d)
(formerly Rule 56(f)) together with an affidavit showing, for specified reasons,
that he cannot present essential facts. 5 The party may not rely on “vague
assertions that additional discovery will produce needed, but unspecified
facts” 6 but instead must “set forth a plausible basis for believing that specified
facts, susceptible of collection within a reasonable time, probably exist and
indicate how the emergent facts, if adduced, will influence the outcome of the




       5  Castro v. Tex. Dep’t of Criminal Justice, No. 12-0584, 2013 WL 5229972, at *2 & n.3
(5th Cir. Sept. 18, 2013); FED. R. CIV. P. 56(d).

       6  Raby v. Livingston, 600 F.3d 552, 561 (5th Cir. 2010) (internal quotation marks and
citation omitted).



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                                     No. 12-31001

pending summary judgment motion.” 7
      A decision whether to delay summary judgment for further discovery is
reviewed for abuse of discretion. Raby, 600 F.3d at 561. Because Brown failed
to file a Rule 56(d) motion and because his motion for an extension of time to
complete discovery did not specify what facts, susceptible of collection, would
influence the outcome of his case, the court did not abuse its discretion by
granting summary judgment without further discovery. See id.


                                           III.
      For the foregoing reasons, we AFFIRM the summary-judgment dismis-
sal of Brown’s claims arising before February 2010; the claims against Labatut;
the respondeat superior claims against Cain, Barr, and Roundtree; and the offi-
cial-capacity claims against Cain and Barr. We VACATE and REMAND as to
the dismissal of Brown’s claims against Cain, Barr, and Roundtree regarding
the prison-medication-delivery system and his claims against Roundtree
regarding the hip-fracture treatment. We DENY Brown’s motions for a prelim-
inary injunction and/or a TRO and his motion to dispense with the requirement
of security because he did not move for injunctive relief in the district court
and has not shown that application for such relief would be impracticable. See
FED. R. APP. P. 8(a)(1)(C), (2)(A). We state no view on the ultimate merit of any
claim or on what decisions or rulings the district court should make on remand.




      7   Id. (internal quotation marks and citation omitted); see also Castro, 2013 WL
5229972, at *2 n.6 (observing that courts have required the party to explain how the addi-
tional discovery might create a factual dispute precluding summary judgment dismissal).


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