     Case: 19-50133   Document: 00515416060   Page: 1   Date Filed: 05/14/2020




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

                                                                   FILED
                               No. 19-50133                     May 14, 2020
                                                                Lyle W. Cayce
                                                                     Clerk
JAY B. VINEYARD,

                                        Plaintiff-Appellant

v.

UNIVERSITY HEALTH SYSTEMS, in their individual and official capacity,
Correctional Care Health Services (Detention Unit in BCADC); KAREN
MCMURRY, in their individual and official capacity, Legal Services
Department, University Health Systems; JESSICA YAO, in their individual
and official capacity, Physician's Assistant/Coordinator of Infirmary,
University Health Systems Detention Unit in BCADC; OLGA ALI, in their
individual and official capacity, Nurse Practictioner, University Health
Systems Infirmary in BCADC; SANDRA WRIGHT, in their individual and
official capacity, Nurse, University Health Systems Medical Pods (L.A.),
University Health Systems Detention Unit in BCADC; HOWARD HUBER, in
their individual and official capacity, Nurse, University Health Systems
Detention Unit in BCADC; KASSANDRA JOHNSTON, in their individual and
official capacity, Medical Records Liaison, Unversity Health Systems;
CORRECTIONAL OFFICER FNU ALDANA, in their individual and official
capacity, BCSO, Infirmary Correctional Officer, University Health Systems
Detention Unit in BCADC; BCSO CORPORAL A. LEIJA, in their individual
and official capacity, BCSO Grievance Officer in BCADC; BCSO J. GARCIA,
in their individual and official capacity, #1754, Patrol Deputy; BEXAR
COUNTY ADULT DETENTION CENTER, in their individual and official
capacity; BCSO JOHN DOE, in their individual and official capacity, BCSO
Transport Officer in BCADC; JAVIER SALAZAR, in their individual and
official capacity, Sheriff, Bexar County; LINDA GARZA, in their individual
and official capacity, Law Librarian in BCADC; BRYAN ALSIP, in their
individual and official capacity, Chief Medical Officer, University Health
Systems; LINDA GARCIA, Law Library Cordinator; DAVID L. CALLENDER;
MEDICAL DOCTOR MARK FOSTER, UTMB John Sealy Hospital; P.A.
MARCOS GOMEZ, UTMB John Sealy Hospital; REBECCA DE LA CRUZ,
     Case: 19-50133      Document: 00515416060         Page: 2    Date Filed: 05/14/2020


                                      No. 19-50133

Senior Practice Manager, UTMB Lopez State Jail; P.A. J. R. DECLET, UTMB
Garza West,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:18-CV-328


Before HAYNES, GRAVES, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Jay B. Vineyard, Texas prisoner # 2172501, moves for in forma pauperis
(IFP) status to appeal the denial of his 42 U.S.C. § 1983 pro se civil rights
complaint as frivolous and for failure to state a claim pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(i)-(iii) and 28 U.S.C. § 1915A(b)(1)-(2).           Vineyard’s brief in
support of his motion argues (1) deliberate indifference to his serious medical
needs; (2) violations of his First Amendment right to access the courts;
(3) vicarious liability on the part of the supervisory officials; (4) theft of his
property by the officer who booked him into the Bexar County Adult Detention
Center (BCADC); and (5) violations of his constitutional rights based on
officials’ failure to investigate and redress his grievances.               Additionally,
Vineyard alleges that the district court violated his right to access the courts
and abused its discretion by denying his motions for joinder and dismissing his
claim without allowing discovery and a jury trial. He also submitted a motion
for leave to file additional evidence, consisting of one page of his medical record,
and requested appointed counsel.


       * 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. 19-50133

      By moving to proceed IFP in this court, Vineyard challenges the district
court’s certification that his appeal is not taken in good faith. See Baugh v.
Taylor, 117 F.3d 197, 202 (5th Cir. 1997). To proceed IFP, Vineyard must
demonstrate financial eligibility and a nonfrivolous issue for appeal.        See
Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982). In determining whether a
nonfrivolous issue exists, this court’s inquiry “is limited to whether the appeal
involves legal points arguable on their merits (and therefore not frivolous).”
Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal quotation marks
and citation omitted).
      As to his claims of deliberate indifference to serious medical needs,
Vineyard alleged, for the most part, that the medical defendants
unsuccessfully or negligently treated his condition on multiple occasions. Such
allegations are not sufficient to state a claim for deliberate indifference. See
Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006); Wagner v. Bay City, Tex.,
227 F.3d 316, 324 (5th Cir. 2000). However, Vineyard stated a nonfrivolous
claim that the delay in his knee surgery constituted deliberate indifference.
See Delaughter v. Woodall, 909 F.3d 130, 138 (5th Cir. 2018). While a decision
to delay may be a medical judgment decision, it may also demonstrate
deliberate indifference to serious medical needs. Id.
      Regarding Vineyard’s claim that the district court and the BCADC
librarian violated his right to access the courts, he did not allege facts that
demonstrate that his ability to pursue a nonfrivolous legal claim was hindered.
See Christopher v. Harbury, 536 U.S. 403, 415 (2002); Brewer v. Wilkinson, 3
F.3d 816, 821 (5th Cir. 1993).      Vineyard’s claims against the supervisory
officials are frivolous because he did not allege personal involvement on the
part of each individual defendant or that some acts by each were causally
connected to a constitutional violation. See Porter v. Epps, 659 F.3d 440, 446



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                                   No. 19-50133

(5th Cir. 2011). As to his property deprivation claim, he alleged that the
deprivation was an unauthorized theft and not authorized by BCADC
procedures. Such an unauthorized deprivation does not give rise to a § 1983
procedural due process claim because the state provides an adequate post-
deprivation remedy: a state tort lawsuit. See Zinermon v. Burch, 494 U.S. 113,
115 (1990).
      Vineyard’s challenge to the BCADC’s grievance procedures is frivolous
because he did “not have a federally protected liberty interest in having these
grievances resolved to his satisfaction.” Geiger v. Jowers, 404 F.3d 371, 374
(5th Cir. 2005). To the extent that Vineyard challenges the district court’s
determination that the individual defendants were entitled to qualified
immunity, with the exception of his claim that his knee surgery was delayed,
he did not “allege a violation of a constitutional right” or “show that the right
was clearly established . . . in light of the specific context of the case.” Pratt v.
Harris Cnty., Tex., 822 F.3d 174, 181 (5th Cir. 2016) (internal quotation marks
and citation omitted). Because it is clearly established that “an unjustified
delay in surgery is unconstitutional,” Delaughter, 909 F.3d at 138, Vineyard’s
claim that the defendants are not entitled to qualified immunity on this basis
is not frivolous. See Howard, 707 F.2d at 220.
      Vineyard contends on appeal that the district court violated several
constitutional rights by referring his case to the magistrate judge (MJ),
preventing him from conducting discovery, denying his motion for joinder, and
dismissing the case without allowing a jury trial. The assignment of some
matters to the MJ did not violate any of Vineyard’s rights. See 28 U.S.C.
§ 636(c)(1). Vineyard’s motion for joinder sought to consolidate his case with
the case of another inmate who brought similar claims against the BCADC,
but the incidents underlying the other inmate’s lawsuit did not arise from the



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                                  No. 19-50133

same transaction or occurrence, and no common questions of law or fact
existed. See FED. R. CIV. P. 20(a)(1). Except with respect to his claim that his
knee surgery was delayed, the district court did not abuse its discretion by
denying Vineyard’s motion for discovery because Vineyard did not show how
the evidence would change the frivolous nature of the allegations in his
complaint. See Gomez v. St. Jude Med. Daig Div., Inc., 442 F.3d 919, 927 (5th
Cir. 2006); Moore v. Willis Indep. Sch. Dist., 233 F.3d 871, 876 (5th Cir. 2000).
As to Vineyard’s claim that his right to a jury trial was violated, the district
court was authorized to issue a sua sponte dismissal order, and it was not
required to allow discovery or a jury trial prior to doing so. See § 1915(e).
      Accordingly, Vineyard’s IFP motion is GRANTED. The district court’s
judgment is VACATED as it pertains to the delay in Vineyard’s knee surgery
and REMANDED for further proceedings regarding that claim. The district
court’s judgment is AFFIRMED on all other grounds. Vineyard’s motion to
appoint counsel on appeal is DENIED as moot, but the district court is free to
reconsider it upon remand. Vineyard’s remaining motions are DENIED.




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