     Case: 14-40021      Document: 00512837224         Page: 1    Date Filed: 11/14/2014




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

                                    No. 14-40021
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                      November 14, 2014
                                                                           Lyle W. Cayce
RICHARD W. JENNINGS,                                                            Clerk


                                                 Plaintiff-Appellant

v.

MONTY HUDSPETH, Unit Warden; JOHN #2 DOE, Shift Sergeant; JANE #1
DOE, Female TDCJ Officer; JANE #2 DOE, Female TDCJ Officer; JOHN DOE
#1, Shift Lieutenant; BRAD LIVINGSTON; MARK RICHARDS; DONALD R.
MCCHRISTIAN,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 3:11-CV-111


Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *
       Richard W. Jennings, Texas prisoner # 820776, appeals the dismissal of
his civil rights complaint, arguing that the district court erred in concluding
that he had not stated a plausible claim for relief against any of the defendants.
Jennings contends that the district court improperly entered summary


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-40021

judgment against him when material facts were in dispute, but Jennings is
mistaken. The district court dismissed Jennings’s complaint under 28 U.S.C.
§ 1915A(b)(1), which it could properly do if Jennings’s factual allegations
“taken as true, do not state a claim that is plausible on its face.” Coleman v.
Sweetin, 745 F.3d 756, 763 (5th Cir. 2014). For Jennings to have stated a
plausible   claim    for   relief,   his   “well-pleaded,     nonconclusory    factual
allegation[s]” must have “nudged” his claim of deliberate indifference “across
the line from conceivable to plausible.” Ashcroft v. Iqbal, 556 U.S. 662, 680
(5th Cir. 2009) (internal quotation marks and citation omitted).
      A prison official may be held liable under the Eighth Amendment for
denying a prisoner humane conditions of confinement only if he acts (or fails
to act) with “deliberate indifference to a substantial risk of serious harm to an
inmate.” Farmer v. Brennan, 511 U.S. 825, 828 (1994). A prison official acts
with deliberate indifference when he or she “knows of and disregards an
excessive risk to inmate health or safety; the official must both be aware of
facts from which the inference could be drawn that a substantial risk of serious
harm exists, and he must also draw the inference.” Id. at 837.
      Jennings’s allegations, in pertinent part, are as follows. Upon Jennings’s
discharge from the hospital after pacemaker implantation surgery and while
he was still noticeably under the effects of medication, Sgt. Donald
McChristian ordered him to put on dirty pants that were much too large to stay
up on his waist and to board the “chain bus”; threatened to write him up if he
did not comply; and taunted and laughed at him when the pants kept falling
to the floor, exposing him with no underwear. The Jane Doe prison guards
were bystanders who did not intervene on Jennings’s behalf but instead joined
McChristian in laughing at him. Jennings was shackled and was unable to
hold the pants up because one of his arms was in a sling and he had to carry



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                                   No. 14-40021

his possessions in his other arm. The pants slid down while he was exiting the
bus, got caught in his shackles, and caused him to fall from the bus to the
concrete below, shifting his pacemaker out of place.
      The district court mischaracterized Jennings’s allegations with respect
to   McChristian,     dismissing   Jennings’s     claim    against   him   because
McChristian’s verbal taunts and threats of disciplinary action did not amount
to a constitutional violation and he had not threatened Jennings with physical
force. The district court did not address Jennings’s claim that McChristian
was deliberately indifferent to his health and safety when McChristian ordered
him to wear excessively large pants that he was unable to hold up while he was
shackled and under the effects of medication.             Jennings’s well-pleaded,
nonconclusory factual allegations state a plausible claim of deliberate
indifference against McChristian, as Jennings alleged that McChristian was
aware of facts from which the inference could be drawn that Jennings faced a
substantial risk of serious harm and that McChristian consciously disregarded
this risk of harm. See Iqbal, 556 U.S. at 680; Farmer, 511 U.S. at 837, 842-43.
Accordingly, the judgment dismissing Jennings’s claim against McChristian is
vacated and remanded for further proceedings.
      The district court also mischaracterized Jennings’s allegations with
respect to the Jane Doe guards, dismissing the claims against them based on
its finding that they merely picked up a pair of pants and a shirt that were in
the bus and gave them to Jennings. As the district court has not determined
whether Jennings’s well-pleaded, factual allegations give rise to a plausible
claim for relief against the Jane Doe guards, the judgment dismissing
Jennings’s claims against them is likewise vacated and remanded for further
proceedings.




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                                 No. 14-40021

      Jennings did not allege a pattern of similar incidents to support a claim
of deliberate indifference against the supervisory defendants, who did not
witness the incident and were not personally involved in it. See Porter v. Epps,
659 F.3d 440, 446 (5th Cir. 2011).      The district court therefore correctly
dismissed the claims against Brad Livingston and Monty Hudspeth under
§ 1915A.
      Jennings has raised new factual allegations forming the basis for his
claim against Mark Richards, which we will not consider. See Varnado v.
Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991). Further, he has not briefed any
error regarding the dismissal of the claim against Richards based on the facts
he pleaded in the district court and has therefore “abandoned on appeal any
arguments against the dismissal of this claim.” Frazier v. Wingo, 717 F.3d 447,
448 (5th Cir. 2013). He has also not briefed and thus abandoned any error
regarding the dismissal of the claims against the two John Doe defendants.
See id.
      Accordingly, the district court judgment dismissing Jennings’s claims
against Hudspeth, Livingston, and the two John Doe defendants is
AFFIRMED. The district court judgment dismissing Jennings’s claims against
McChristian and the two Jane Doe defendants is REVERSED and
REMANDED for further proceedings consistent with this opinion.




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