     Case: 13-10356      Document: 00512583106         Page: 1    Date Filed: 04/02/2014




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

                                                                                     FILED
                                    No. 13-10356                                  April 2, 2014
                                  Summary Calendar
                                                                                Lyle W. Cayce
                                                                                     Clerk
JERALD JEROME DORSEY,

                                                 Plaintiff-Appellant

v.

THOMAS RELF, Correctional Officer; JORDAN BOONE, Correctional Officer;
UNITED STATES OF AMERICA,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:12-CV-21


Before DAVIS, SOUTHWICK and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Jerald Jerome Dorsey, federal prisoner # 58306-019, appeals the district
court’s grant of defendants’ summary judgment motion on his civil rights
claims, brought pursuant to Bivens v. Six Unknown Agents of the Fed. Bureau
of Narcotics, 403 U.S. 388 (1971), and the dismissal of his negligent training
claim brought under the Federal Tort Claims Act (FTCA). Dorsey specifically



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-10356

alleges that the district court erred in determining that Thomas Relf and
Jordan Boone did not act with deliberate indifference when they failed to
transport him to medical after he fell out of his wheelchair, that the court erred
by sua sponte granting summary judgment on his negligence claims, and that
the court erred by determining that his claim for negligent training was barred
by the discretionary function exception in the FTCA. Dorsey had not briefed
any additional claims; thus, he has abandoned, by failing to brief, any
argument relative to the district court’s dismissal of the remaining claims
raised in his complaint.    See Yohey v. Collins, 985 F.2d 222, 224-25 (5th
Cir.1993); FED. R. APP. P. 28(a)(6).
      First, Dorsey, a paraplegic confined to a wheelchair, argues that Relf and
Boone acted with deliberate indifference because they did not transport him to
medical after they discovered that he had fallen out of his wheelchair; Dorsey
alleges that he informed Relf and Boone that he was in pain and that he
thought that his leg was broken. This court reviews the grant of a motion for
summary judgment de novo. Xtreme Lashes, LLC v. Xtended Beauty, Inc., 576
F.3d 221, 226 (5th Cir. 2009).
      Dorsey has not carried his burden of showing that Relf and Boone’s
conduct was “reckless--without regard to the rights of others,” “causeless[],
without restraint, and in reckless disregard of the rights of others.” Johnson
v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985) (quoting Smith v. Wade, 461 U.S.
30, 39 n.8 (1983), internal quotation marks omitted). It is undisputed that
Dorsey fell out of his wheelchair during “count,” in which prison officials
perform a count of each prisoner. According to Bureau of Prisons (BOP) policy,
count is not to be interrupted, and prisoners are not to be moved during count,
absent an emergency, which includes a severe medical condition that warrants
timely medical attention.     It is likewise undisputed that Relf and Boone



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inspected Dorsey’s leg and discovered no swelling, blood, or protruding bone;
Dorsey’s medical treatment was delayed, at most, by an hour and fifteen
minutes. Based on the lack of evidence establishing that Relf and Boone knew
that Dorsey’s leg was broken, the absence of obvious signs showing that his leg
was broken, the fact that the incident occurred during count, and the length of
the delay, Dorsey has failed to show that the district court erred in determining
that Relf and Boone did not act with deliberate indifference. See Johnson v.
Treen, 759 F.2d 1236, 1238 (5th Cir. 1985); see also Walker v. Butler, 967 F.2d
176, 178 (5th Cir. 1992).
      Second, Dorsey’s argument that the district court erred in sua sponte
granting defendants’ motion for summary judgment on his negligence claims
is belied by the record; he argues that he did not have an opportunity to provide
evidence and argument supporting his negligence claims. Although Dorsey
alleges that defendants did not move for summary judgment on these claims,
the record reflects otherwise. See John Deere Co. v. Am. Nat’l Bank, 809 F.2d
1190, 1192 (5th Cir. 1987).
      Third, Dorsey has not established that the district court erred by
determining that his negligent training claim was barred by the discretionary
function exception to the FTCA.      The FTCA provides a limited waiver of
sovereign immunity from suit for claims regarding “injury or loss of property,
or personal injury or death arising or resulting from the negligent or wrongful
act or omission of any employee of the Government while acting within the
scope of his office or employment.”        28 U.S.C. § 2679(b)(1).    Under the
discretionary function exception, the waiver of immunity does not apply to any
claim “based upon the exercise or performance or the failure to exercise or
perform a discretionary function or duty on the part of a federal agency or an
employee of the Government, whether or not the discretion involved be



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                                 No. 13-10356

abused.” 28 U.S.C. § 2680(a); see Guile v. United States, 422 F.3d 221, 229 (5th
Cir. 2005). BOP policy regarding count provides that if a medical issue arises
during count, correctional officers are required to assess the situation and
determine whether the medical condition is sufficiently severe to justify the
interruption of count. Because Relf and Boone exercised their judgment and
discretion when deciding not to interrupt count by transporting Dorsey to
medical, he has not shown that the district court erred in determining that the
challenged act involved “an element of judgment or choice” and that Relf’s and
Boone’s judgment was of “the kind that the discretionary function exception
was designed to shield.” United States v. Gaubert, 499 U.S. 315, 322-23 (1991).
      AFFIRMED.




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