     Case: 18-10425      Document: 00514977209         Page: 1    Date Filed: 05/30/2019




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

                                    No. 18-10425                             FILED
                                  Summary Calendar                       May 30, 2019
                                                                        Lyle W. Cayce
                                                                             Clerk
MELVIN WIAND,

                                                 Plaintiff-Appellant

v.

T J HARMON, Warden; NFN FREEMAN,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:16-CV-2363


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       Melvin Wiand, federal prisoner # 37221-177, has appealed the district
court’s judgment dismissing his civil action asserting claims under Bivens v.
Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971),
asserting inter alia that the defendant prison officials violated his
constitutional rights by delaying needed cataract surgery. Wiand does not
brief and has thus abandoned any challenge to the dismissal of his official-


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-10425    Document: 00514977209    Page: 2   Date Filed: 05/30/2019


                                No. 18-10425

capacity and Americans with Disability Act claims and the claims against
Lieutenant Freeman and John Doe, Prison Clinical Director. See Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). The only remaining claims are
those against Warden T.J. Harmon individually. We need not reach whether
the district court erred in determining that the claims against Warden Harmon
were not exhausted because we may affirm on the alternative basis that the
warden is entitled to qualified immunity. See Brown v. United States, 227 F.3d
295, 298 (5th Cir. 2000).
      Wiand’s filings in the district court fail to allege that Warden Harmon
knew of and consciously disregarded any substantial risk of serious harm to
Wiand or otherwise had any personal involvement in the alleged delay in
treatment. See Lawson v. Dallas Cty., 286 F.3d 257, 262 (5th Cir. 2002); see
also Roberts v. City of Shreveport, 397 F.3d 287, 292 (5th Cir. 2005). As such,
Warden Harmon is entitled to qualified immunity. See Pearson v. Callahan,
555 U.S. 223, 231 (2009). The judgment is affirmed on that alternative ground.
Wiand’s motion to strike a portion of the appellees’ brief is DENIED.
      AFFIRMED.




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