     Case: 09-60959 Document: 00511497253 Page: 1 Date Filed: 06/03/2011




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

                                                 FILED
                                                                            June 3, 2011
                                     No. 09-60959
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

PAUL GRAHAME MORGAN,

                                                   Plaintiff-Appellant

v.

STATE OF MISSISSIPPI; ATTORNEY GENERAL OF THE STATE OF
MISSISSIPPI; CHRISTOPHER EPPS; E.L. SPARKMAN; RONALD KING;
LAWRENCE KELLY; MARGARET BINGHAM; BOBBY KING; DR. BEARRY;
RUTHIE HALL, Nurse; MILLIS WASHINGTON; DR. ARNOLD; DR. WALKER;
LT. HOLMES; DR. WATTS; DR. MCCLEAVE; DR. RON WOODALL;
LIEUTENANT "UNKNOWN" BONNER; CAPTAIN UNKNOWN DAVIS; EMIL
DANEFF; WEXFORD HEALTH SOURCES, INC.; JOHN DOE, I, CEO of
Correctional Medical Services; JOHN DOE, II, CEO of Wexford Health Sources,
Inc.; JASON HOLMES; HUBERT DAVIS; RITA BONNER; CAPTAIN PAGE;
CAPTAIN ENLERS; CAPTAIN SIMMS; BRENDA SIMMS; NINA ENLERS;
SHARON PAIGE,

                                                   Defendants-Appellees


                    Appeal from the United States District Court
                      for the Southern District of Mississippi
                               USDC No. 2:07-CV-15


Before REAVLEY, DENNIS, and CLEMENT, 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
     Case: 09-60959 Document: 00511497253 Page: 2 Date Filed: 06/03/2011

                                     No. 09-60959

      Paul Morgan, Mississippi prisoner # 53437, who is currently incarcerated
in the South Mississippi Correctional Institution (SMCI), filed a 42 U.S.C. § 1983
action naming, as pertinent to this appeal, the following defendants: (1) Wexford
Health Sources, Inc., Dr. Emil Dameff, Dr. Ron Woodall, Dr. Charmaine
McCleave, and Millis Washington (collectively referred to as the Wexford
Defendants); (2) Correctional Medical Services, Inc. (CMS), Nurse Ruthie Hall,
Dr. John Bearry, Dr. Risher Watts, Dr. Rochel Walker, Dr. Patrick Arnold, and
Bobby King (collectively referred to as the CMS Defendants); and (3) the State
of Mississippi, Christopher Epps, Emmitt Sparkman, Ronald King, Lawrence
Kelly, Margaret Bingham, Jason Holmes, Hubert Davis, Rita Bonner, Brenda
Simms, Nina Enlers, and Sharon Paige (collectively referred to as the State
Defendants). Morgan alleged, as relevant to the instant proceeding, claims
against the defendants in their official and individual capacities for the denial
and/or delay of adequate medical treatment, improper conditions of confinement,
violation of his freedom of religion (denial of Lenten food tray), violation of his
right to privacy and to be free from illegal searches and seizures, and violation
of the Americans with Disabilities Act (ADA).1
      Morgan has failed to adequately brief, and has therefore abandoned on
appeal, any challenge to the district court’s (1) partial grant of a motion to
dismiss in favor of the State Defendants; (2) partial grant of summary judgment
in favor of the Wexford Defendants; and (3) granting of summary judgment in
favor of the CMS Defendants. See Brinkmann v. Dallas County Deputy Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987). He has also abandoned on appeal any
challenge to the district court’s granting of judgment as a matter of law in favor




      1
         Through his complaint and various amended complaints, Morgan named
approximately 35 defendants in total and alleged a plethora of claims. Many of those
defendants and claims were dismissed at various times during the course of the more than
three-year litigation. Morgan does not appeal those dismissals; he has therefore abandoned
them on appeal. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).

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                                   No. 09-60959

of Ms. Washington, Dr. Woodall, Dr. Dameff, and the remaining Wexford
Defendants. Id.
      As for the claims that proceeded to bench trial, this court reviews the
findings of fact for clear error and issues of law de novo. F ED. R. C IV. P. 52(a);
Peaches Entm’t Corp. v. Entm’t Repertoire Assocs., Inc., 62 F.3d 690, 693 (5th
Cir. 1995). “A finding is clearly erroneous when although there is evidence to
support it, the reviewing court on the entire evidence is left with a definite and
firm conviction that a mistake has been committed.” Cupit v. McClanahan
Contractors, Inc., 1 F.3d 346, 348 (5th Cir. 1993).
      The district court did not err in rejecting Morgan’s claim that he was
subjected to unconstitutional searches and seizures. Although a prisoner’s
rights are diminished by legitimate penological needs, “[t]he Fourth Amendment
. . . requires that searches or seizures conducted on prisoners must be reasonable
under all the facts and circumstances in which they are performed.” Elliott v.
Lynn, 38 F.3d 188, 190-91 (5th Cir. 1994) (internal quotation and citation
omitted). The invasion of privacy that Morgan alleged was no greater than this
court has previously held to be constitutional. See Oliver v. Scott, 276 F.3d 736,
745 (5th Cir. 2002); Letcher v. Turner, 968 F.2d 508, 510 (5th Cir. 1992); Elliott,
38 F.3d at 190-92.
      With regard to Morgan’s First Amendment challenge to the Lenten policy,
as noted in Baranowski v. Hart, 486 F.3d 112, 122 (5th Cir. 2007), “[t]his circuit
has already ruled that prisons need not respond to particularized religious
dietary requests to comply with the First Amendment.” Moreover, Morgan failed
to show that the practice of his religious faith was entirely circumscribed by the
prison’s Lenten policy. See Kahey v. Jones, 836 F.2d 948, 950-51 (5th Cir. 1988),
The district court’s account and interpretation of the evidence are plausible in
light of the record viewed in its entirety; no error in the denial of relief has been
shown. See Reich v. Lancaster, 55 F.3d 1034, 1045 (5th Cir. 1995).



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                                   No. 09-60959

      Nor has Morgan shown that the district court erred in denying relief with
regard to his claims that the defendants were deliberately indifferent to his
medical needs. The Eighth Amendment does not mandate comfortable prisons.
See Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Rather, it protects prisoners
against the wanton and unnecessary infliction of pain and exposure to egregious
physical conditions that deprive them of basic human needs. Id.
      Morgan’s claims amounted, at best, to a claim of negligence or malpractice
which is insufficient to establish deliberate indifference.       See Varnado v.
Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991). And, certainly, the claims failed to
show that the defendants implemented a policy so deficient that the policy itself
was a repudiation of constitutional rights and was the moving force of the
constitutional violation. See Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir.
1987). Moreover, Morgan’s arguments on appeal amount to no more than a
disagreement with the district court’s credibility determinations to which this
court defers. See Reich, 55 F.3d at 1045. Lastly, a review of the trial transcript
shows that the district court’s account and interpretation of the evidence are
plausible in light of the record as whole; the district court did not err in denying
relief. See id.
      We conclude that Morgan has abandoned by failing to adequately brief the
district court’s denial of his ADA claims and his claim that he was denied
impeachment evidence. See Brinkmann, 813 F.2d at 748. The district court also
did not err in denying Morgan’s request for appointment of counsel and expert
witnesses. See Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir. 1982); Pedraza
v. Jones, 71 F.3d 194, 196-97 & n.5 (5th Cir. 1995).
      Morgan avers that the district court erred in excluding his “personal logs.”
Morgan’s appellate brief does not mention any offers of proof and does not
cite to any pages of the record on appeal that might indicate that offers of
proof were ever made regarding the logs. Therefore, any error was waived.



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                                No. 09-60959

See United States v. Clements, 73 F.3d 1330, 1336 (5th Cir.1996). Finally, we
decline to address Morgan’s new evidence regarding the fact that he broke his
hip in December 2009 and a recent Department of Justice investigation of SMCI.
See Leonard v. Dixie Well & Supply, Inc., 828 F.2d 291, 296 (5th Cir. 1987).
      AFFIRMED.




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