                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                     F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                       August 11, 2005

                                                                 Charles R. Fulbruge III
                                                                         Clerk
                                No. 04-50547
                              Summary Calendar



EDGAR LEE BREEDLOVE,

                                          Plaintiff-Appellant,

versus

RUDY SANCHEZ, Assistant Warden; JUANITA DORMAN,
Class Supervisor; PAUL WEATHERBY, Building Captain

                                          Defendants-Appellees.

                           --------------------
              Appeal from the United States District Court
                    for the Western District of Texas
                            USDC No. 4:99-CV-35
                           --------------------

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:*

     Edgar Lee Breedlove, Texas state prisoner # 637597, sued the

defendants, employees of the Texas Department of Criminal Justice,

under    42   U.S.C.   §   1983,   claiming   he   suffered   injuries      from

performing manual labor in violation of his medical restrictions.

Breedlove appeals the district court’s entry of judgment in favor

of the defendants following a jury trial.

     The defendants filed a motion for summary judgment, which the

district court referred to a magistrate judge.                The magistrate

     *
      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this opinion should not be published and is not precedent except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. 04-50547
                                          -2-

judge issued a report and recommendation that the motion be denied.

After no objections were filed, the district court adopted the

report and recommendation and denied the defendants’ motion for

summary    judgment.       At   trial,      Breedlove    repeatedly    sought   to

introduce into evidence the magistrate’s report and recommendation,

claiming    that    the    magistrate        judge   made     specific     factual

conclusions that the district court adopted when it denied the

defendants’ motion for summary judgment.                    The district court

refused to admit the report.           After the jury returned a verdict for

the defendants, the district court entered a take-nothing judgment

against Breedlove.

     Breedlove argues on appeal that the district court committed

reversible error in permitting the jury to make fact findings that

had already been made by the magistrate judge and adopted by the

district court.      Breedlove also contends that the district court

plainly    erred    in    failing      to   submit   a    jury   instruction    on

supervisory liability.

     If a summary judgment motion is granted, there is a finding

that there are no genuine issues of material fact and the moving

party is entitled to judgment as a matter of law.1                    However, in

recommending    a   denial      of    the   defendants’     motion   for   summary

judgment, the magistrate judge, after viewing the evidence in the

light most favorable to Breedlove, found that there were genuine



     1
      FED. R. CIV. P. 56(c); see also Wallace v. County of Comal, 400
F.3d 284, 288 (5th Cir. 2005).
                                No. 04-50547
                                     -3-

issues of material fact that must be determined at trial.2              In

denying the summary judgment motion, the magistrate judge did not

make any dispositive credibility findings, nor did he make any

determinative findings on the issues presented in this case.3

Moreover, the only order the district court entered on the motion

for summary judgment was an order denying the motion; the district

court did not enter any kind of judgment in Breedlove’s favor.

Thus, the district court did not err in permitting the jury to make

the requisite fact findings.

      Breedlove also argues on appeal that the district court

plainly erred in failing to instruct the jury on supervisory

liability. Breedlove did not request an instruction on supervisory

liability and did not object to the charge.       Breedlove’s failure to

submit to the district court a specific written instruction on

supervisory liability precludes him from complaining on appeal that

the   instruction   was   not   given.4   Thus,   the   district   court’s




      2
      See Estate of Davis ex rel McCully v. City of N. Richland
Hills, 406 F.3d 375, 379 (5th Cir. 2005) (“‘When a district court
denies summary judgment on the basis that genuine issues of
material fact exist, it has made two distinct legal conclusions:
there are ‘genuine’ issues of fact in dispute, and that these
issues are ‘material’.’” (quoting Reyes v. City of Richmond, 287
F.3d 346, 351 (5th Cir. 2002))).
      3
      See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986)
(“[A]t the summary judgment stage the judge’s function is not
himself to weigh the evidence and determine the truth of the matter
but to determine whether there is a genuine issue for trial.”).
      4
      See Kanida v. Gulf Coast Med. Pers. LP, 363 F.3d 568, 580
(5th Cir. 2004).
                               No. 04-50547
                                    -4-

omission of a specific instruction on supervisory liability is not

subject to our review.5

     Insofar   as   Breedlove’s    argument   can   be   construed   as   a

challenge to the jury instructions, his failure to object limits

our review of the instructions to plain error review.6        Under plain

error review, an appellate cannot correct an error not raised at

trial unless there is (1) error, (2) that is plain,(3) that

affected the complaining party’s substantial rights, and (4) that

seriously affects the fairness, integrity, or public reputation of

judicial proceedings.7    Although upon request Breedlove could have

obtained a more specific instruction on supervisor liability, the

instructions    given     on    deliberate    indifference,     personal

participation, and participation in another’s wrongful conduct were

sufficient for the jury to determine whether the defendants acted

with deliberate indifference.8      If any error occurred, Breedlove

has not shown that it affected his substantial rights or seriously

affect the fairness, integrity, or public reputation of judicial




     5
      Id.
     6
      FED. R. CIV. P. 51(d)(2) (“A court may consider a plain error
in the instructions affecting substantial rights that has not been
preserved as required by Rule 51(d)(1)(A) or (B).”); see also
Kanida, 363 F.3d. at 581.
     7
      FED. R. CIV. P. 51(d)(2); see also Taita Chem. Co. v. Westlake
Strene, LP, 351 F.3d 663, 668 (5th Cir. 2003)(internal citations
and quotations omitted).
     8
      See Williams v. Hoyt, 556 F.2d 1336, 1340 (5th Cir. 1977).
                              No. 04-50547
                                   -5-

proceedings.9     Thus, Breedlove has failed to show plain error in

the district court’s jury instructions.10

     The judgment is therefore AFFIRMED.




     9
      Taita Chem. Co., 351 F.3d at 668.
     10
          See Tilmon v. Prator, 368 F.3d 521, 524 (5th Cir. 2004).
