     Case: 10-20139 Document: 00511329856 Page: 1 Date Filed: 12/22/2010




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

                                                 FILED
                                                                         December 22, 2010
                                     No. 10-20139
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

TOMMIE L. MCCLYDE, JR.,

                                                   Plaintiff-Appellant

v.


DANNY JACKSON, Sheriff Deputy; JOE LARIVE, Sheriff; LARRY COOK,
Captain; CHAMBERS COUNTY SHERIFF’S OFFICE, County Jail; REGINA
WALKER, Medical Coordinator, Texas-certified Jailer of the Chambers County
Sheriff’s Office; JUANELL GUIDRY, Grievance Officer, Texas-licensed Jailer of
the Chambers County Sheriff’s Office,

                                                   Defendants-Appellees


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:07-CV-4244


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Tommie L. McClyde, Jr., now Texas prisoner # 1510893, appeals the
district court’s grant of summary judgment in favor of the defendants and the
dismissal of his 42 U.S.C. § 1983 complaint. McClyde alleged in his complaint



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-20139

that, while he was a pretrial detainee, Deputy Danny Jackson used excessive
force against him and showed a deliberate indifference to McClyde’s serious
medical needs that arose from that use of force. McClyde also alleged that
Captain Larry Cook and Sheriff Joe LaRive failed to supervise Jackson and to
initiate an internal affairs investigation and discipline Jackson.
      The following facts are undisputed. McClyde used profanity and provoked
a verbal altercation with Jackson. The two men bumped chests, and the other
inmates in the immediate vicinity began to circle around Jackson and McClyde.
Jackson attempted to physically subdue McClyde by bending him over a table,
and McClyde resisted and struggled with Jackson.           Ultimately, Jackson
punched McClyde in the nose and required assistance from another officer to
subdue McClyde. McClyde was moved to a holdover cell to diffuse the situation.
McClyde sustained a bloody nose as a result of the incident, and he was not
given medical attention during the few hours he was held in the holdover cell.
Jackson also alleged that he sustained scarring on his shoulder and knee and an
injury to his knee.
      We review de novo the district court’s grant of summary judgment.
Stewart v. Murphy, 174 F.3d 530, 533 (5th Cir. 1999). Summary judgment is
appropriate if the “movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” F ED.
R. C IV. P. 56(a) (effective Dec. 1, 2010). We view the evidence in the light most
favorable to the non movant. Stewart, 174 F.3d at 533. The movant bears the
burden of showing that there is no genuine issue of material fact; nevertheless,
when faced with a properly supported motion for summary judgment, the
nonmovant bears the burden of producing “evidence from which a jury might
return a verdict in his favor” and, as such, may not rest solely upon his
pleadings, “but must set forth specific facts showing that there is a genuine issue
for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57 (1986).



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                                 No. 10-20139

      The district court correctly dismissed McClyde’s claims against LaRive and
Cook for failure to supervise, investigate, and discipline as unexhausted. There
is no dispute that only one formal grievance was filed with regard to this
incident. In that grievance, McClyde complained only of Jackson’s conduct and
the fact that his nosebleed was not attended to. Nothing in that grievance,
viewed in the light most favorable to McClyde, sufficed to alert prison officials
to McClyde’s complaints regarding those two men, and prison officials thus did
not have a fair opportunity to address those complaints. As such, the claims
were not exhausted. Johnson v. Johnson, 385 F.3d 503, 522 (5th Cir. 2004).
      The core inquiry in an Eighth Amendment excessive use of force claim is
“whether force was applied in a good-faith effort to maintain or restore
discipline, or maliciously and sadistically to cause harm.” Hudson v. McMillian,
503 U.S. 1, 7 (1992). Considering the undisputed facts stated above, the district
court did not err in determining that the summary judgment evidence showed
that Jackson’s actions were undertaken in an effort to maintain discipline and
not for malicious or sadistic reasons. Deliberate indifference requires a showing
that defendants (1) were aware of facts from which an inference of excessive risk
to the prisoner’s health or safety could be drawn and (2) actually drew an
inference that such potential for harm existed. Herman v. Holiday, 238 F.3d
660, 664 (5th Cir. 2001). The competent summary judgment evidence shows
that Jackson was aware of McClyde’s nosebleed but did not believe that it was
a serious medical condition requiring immediate attention.            McClyde’s
conclusional allegation that his medical needs should have been obvious to
Jackson are insufficient to make the showing required to resist summary
judgment on his deliberate indifference claim. See Eason v. Thaler, 73 F.3d
1322, 1325 (5th Cir. 1996). The judgment of the district court is AFFIRMED.
      The defendants have filed a motion to strike a portion of McClyde’s reply
brief that they contend relies on evidence not considered by the district court.
They also seek leave to file a surreply to respond to arguments raised for the

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                                   No. 10-20139

first time in McClyde’s reply brief. We do not consider new evidence or facts that
were not before the district court at the time of the challenged ruling. Theriot
v. Parish of Jefferson, 185 F.3d 477, 491 n.26 (5th Cir. 1999). Additionally, we
generally will not consider issues raised for the first time in a reply brief. United
States v. Rodriguez, 602 F.3d 346, 360 (5th Cir. 2010).           Accordingly, the
defendants’ MOTIONS are DENIED AS UNNECESSARY.




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