     Case: 10-30022 Document: 00511481782 Page: 1 Date Filed: 05/18/2011




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

                                                 FILED
                                                                            May 18, 2011
                                     No. 10-30022
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

RONNIE ADOLPHUS NOEL,

                                                   Plaintiff-Appellant

v.

CRAIG WEBRE, Lafourche Parish Sheriff; EDDIE RODRIGUE, Warden;
SANDY AUTIN, Head Nurse; LATASHA S. DAVIS, Correctional Officer III,

                                                   Defendants-Appellees


                    Appeal from the United States District Court
                       for the Eastern District of Louisiana
                              USDC No. 2:07-CV-6391


Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
       Ronnie Adolphus Noel, currently Louisiana prisoner # 118807, filed a civil
rights complaint alleging that his constitutional rights had been violated when
he was housed as a detainee in the Lafourche Parish Prison (LPP). Noel, who
is confined to a wheelchair, alleged that he was denied medical treatment,
housed in unconstitutional conditions, subjected to excessive force, and denied
access to the courts while in the LPP. The parties consented to proceed before


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-30022

a magistrate judge (MJ). Noel moved to file an amended complaint adding three
more defendants. The MJ denied the motion noting that the matter had been
pending for two years and that the trial was less than a month away. Contrary
to Noel’s argument on appeal, this was not an abuse of discretion. See Lowrey
v. Texas A&M University System, 117 F.3d 242, 245 (5th Cir. 1997).
      Following a bench trial, the MJ issued an order and reasons dismissing
Noel’s complaint with prejudice.      The MJ found that Noel suffered from
syringomyelia and that this condition constituted a serious medical need. The
MJ found that Noel’s condition had not been ignored, but that he had been seen
and evaluated by the LPP medical staff on numerous occasions, had been given
several medications, and had been transferred to a hospital emergency room
when warranted by his medical complaints. The MJ rejected Noel’s claim of
inadequate medical care because his complaints amounted to a disagreement
with his medical care but did not establish deliberate indifference to his serious
medical needs.
      The MJ dismissed Noel’s complaint of excessive force based on a credibility
determination. The MJ found that Noel’s testimony that he had been viciously
assaulted by officer Latasha Davis while corrections officers searched his cell
and wheelchair for contraband was false. The MJ credited Davis’s testimony
that she had restrained Noel to protect other officers and to prevent him from
biting her while the search was conducted.
      The MJ dismissed Noel’s complaint regarding conditions of confinement
based on a lack of evidence because they were supported by no evidence other
than Noel’s “uncorroborated and conclusory allegations.” The MJ dismissed
Noel’s complaint of denial of access to the courts based on a lack of evidence.
The MJ found that Noel had no protected liberty interest in the prison grievance
procedure. Noel has now appealed and is challenging the district court factual
and legal findings.



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                                  No. 10-30022

      In an appeal from a bench trial, this court reviews the district court’s
findings of fact for clear error and questions of law de novo. Water Craft Mgmt.
LLC v. Mercury Marine, 457 F.3d 484, 488 (5th Cir. 2006). This court will find
clear error if
      (1) the findings are without substantial evidence to support them,
      (2) the court misapprehended the effect of the evidence, and (3)
      although there is evidence which if credible would be substantial,
      the force and effect of the testimony, considered as a whole,
      convinces the court that the findings are so against the
      preponderance of credible testimony that they do not reflect or
      represent the truth and right of the case.
Id. (citing Moorhead v. Mitsubishi Aircraft Int’l, Inc., 828 F.2d 278, 283 (5th
Cir.1987)).
      Noel argues that the MJ erred in dismissing his complaints of inadequate
medical treatment.      A detainee’s constitutional rights spring from the
Fourteenth Amendment’s procedural and substantive due process clauses. Bell
v. Wolfish, 441 U.S. 520, 535-36 (1979)). If a pretrial detainee bases his claim
upon a prison official’s “episodic acts or omissions,” the standard of subjective
deliberate indifference enunciated in Farmer v. Brennan, 511 U.S. 825, 837
(1994), is the measure of culpability. Hare v. City of Corinth, Miss., 74 F.3d 633,
639 (5th Cir. 1996) (en banc). On appeal, Noel does not address the deliberate
indifference standard. Rather, he focuses his argument on his assertion that,
under Louisiana law, he was entitled to have a physician treat his complaints.
Noel has not shown that the MJ erred in dismissing this claim.
      Noel argues that the MJ erred in finding that his version of the events of
the alleged excessive use of force were not credible. An excessive force claim by
a pretrial detainee is also governed by the Due Process Clause of the Fourteenth
Amendment. See Brothers v. Klevenhagen, 28 F.3d 452, 455-56 (5th Cir. 1994)
(citing Valencia v. Wiggins, 981 F.2d 1440, 1443-45 (5th Cir. 1993)).         The
question under this analysis is whether the force applied was in a good faith
effort to maintain or restore discipline, or maliciously and sadistically for the

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very purpose of causing harm. Hudson v. McMillian, 503 U.S. 1, 5-10 (1992);
Valencia, 981 F.2d at 1446. As noted above, factual findings will not be reversed
if they are supported by substantial evidence. Water Craft Mgmt. LLC, 457 F.3d
at 488. Davis’s testimony at trial was clear that during the search of Noel’s cell
he lashed out at the corrections officers and that she had to restrain him using
the procedures she had been trained to employ. On appeal, Noel argues that this
testimony was not true, but offers no evidence to support this assertion. This is
not sufficient to show that the MJ was clearly erroneous in her fact finding.
      As part of his list of issues on appeal, Noel asserted that the MJ court
erred in dismissing his claims related to the conditions at the jail. In the body
of his brief, Noel did not elaborate on this bald assertion by providing
recognizable argument that addressed the MJ’s analysis of the issue. This issue
has been abandoned. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993);
see also Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748
(5th Cir. 1987)
      Noel argues that the MJ erred in rejecting his denial-of access-to-courts
claim and prison-grievance claim. With respect to the first argument, there is
a constitutionally protected right of access to the courts. Bounds v. Smith, 430
U.S. 817, 821 (1977). To prevail on such a claim, Noel must show that he was
prejudiced by the alleged violation. Lewis v. Casey, 518 U.S. 343, 351-52 (1996).
Noel has made no such showing. With respect to prison grievances, the MJ was
correct in concluding that allegations regarding the handling of Noel’s grievances
do not give rise to a constitutional claim. See Geiger v. Jowers, 404 F.3d 371,
373-74 (5th Cir. 2005).
      AFFIRMED.




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