                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 March 23, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 03-20776
                         Summary Calendar



ARCADE JOSEPH COMEAUX, JR.,

                                    Plaintiff-Appellant,

versus

MACKWANI; DR. LARRY LARGENT; DR. NAIK; DANIEL C.
MAYER; DR. DIMAUNAHAN; PHILLIP PERRY, Lieutenant,

                                    Defendants-Appellees.

------------------------------------------

ARCADE JOSEPH COMEAUX, JR.,

                                    Plaintiff-Appellant,

versus

RICK THALER,

                                    Defendant-Appellee.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. 4:00-CV-3812
                      USDC No. 4:01-CV-1411
                       --------------------

Before REAVLEY, JOLLY, and HIGGINBOTHAM, 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this opinion should not be published and is not precedent except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.
                            No. 03-20776
                                 -2-

     Arcade Joseph Comeaux, Jr., Texas prisoner #841331, appeals

the district court’s grant of summary judgment and dismissal with

prejudice of his 42 U.S.C. § 1983 complaint in Cause No.

4:00-CV-3812.   We review the district court’s grant of summary

judgment in favor of Dr. Naik and the dismissal of Comeaux’s

claims against the remaining defendants de novo.    See Cousin v.

Small, 325 F.3d 627, 637 (5th Cir.), cert. denied, 540 U.S. 826

(2003); Ruiz v. United States, 160 F.3d 273, 275 (5th Cir. 1998).

As Comeaux has appealed only the denial of his claims relating to

his alleged need for physical therapy and for the denial of

medical care in connection with his fall on October 16, 2000, all

of his other claims alleging the denial of necessary medical care

have been abandoned.    See Yohey v. Collins, 985 F.2d 222, 225

(5th Cir. 1993).

     After reviewing the record and the briefs submitted by the

parties, we conclude that the district court did not err in

granting Dr. Naik’s summary judgment motion and in denying

Comeaux’s summary judgment motion.    See Hare v. City of Corinth,

135 F.3d 320, 325-26 (5th Cir. 1998); Farmer v. Brennan, 511 U.S.

825, 832, 837 (1994).   Moreover, the record does not support

Comeaux’s allegations that Dr. Naik provided incomplete and

incompetent summary judgment evidence; that the district court

improperly considered Comeaux’s criminal history and the security

concern he presented in the prison; that the district court

improperly considered medical records that were presented during
                              No. 03-20776
                                   -3-

the Spears** hearing; that Comeaux’s due process rights were

violated because he did not have access to certain records during

the Spears hearing; and that Comeaux’s due process rights were

violated because he was not aware during the Spears hearing that

the instant case would be consolidated with Cause No. 4:01-CV-

1411.     We also conclude that the district court did not abuse its

discretion in denying Comeaux’s motion to compel discovery.     See

Mayo v. Tri-Bell Indus., Inc., 787 F.2d 1007, 1012 (5th Cir.

1986).

     We do conclude, however, that the district court abused its

discretion in consolidating Comeaux v. Mackawani, Cause No.

4:00-CV-3812, with Comeaux v. Thaler, 4:01-CV-1411.     See Dillard

v. Merrill Lynch, Pierce, Genner & Smith, Inc., 961 F.2d 1148,

1161 (5th Cir. 1992).     With the exception of the fact that

Comeaux raised Eighth Amendment claims in both civil rights

suits, the suits did not involve common questions of law and

fact.     See FED. R. CIV. P. 42(a).

     In addition, while the district court was correct that

Warden Rick Thaler, a defendant in Cause No. 4:01-CV-1411, could

not be held vicariously liable for the actions of his employees,

it erred in finding that the warden was sued only in his

supervisory capacity.     Comeaux’s complaint, liberally construed,

alleged that Warden Thaler had personal knowledge that the

Estelle High Security Prison Unit was not equipped to meet


     **
           Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
                            No. 03-20776
                                 -4-

Comeaux’s special needs and that the failure to meet his special

needs would result in the denial to Comeaux of the basic

necessities of life.   In addition, contrary to the district

court’s finding, there is no indication that the remaining

defendants named in Cause No. 4:01-CV-1411 were following the

orders of Dr. Naik.    Accordingly, we VACATE the district court’s

consolidation of Cause Nos. 4:00-CV-3812 and 4:01-CV-1411 and the

dismissal of the defendants named in Cause No. 4:01-CV-1411.

Cause No. 4:01-CV-1411 is REMANDED to the district court for

further proceedings.   Comeaux’s motion for appointment of counsel

on appeal is DENIED.

     AFFIRMED IN PART (CAUSE NO. 4:00-CV-3812); VACATED AND

REMANDED IN PART (Cause No. 4:01-CV-1411); MOTION FOR APPOINTMENT

OF COUNSEL DENIED.
