     Case: 13-60910      Document: 00512804148         Page: 1    Date Filed: 10/15/2014




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

                                                                                  FILED
                                      No. 13-60910                          October 15, 2014
                                                                             Lyle W. Cayce
LAVEAL MCGHEE,                                                                    Clerk


                                                 Plaintiff-Appellant

v.

SUPERINTENDENT EMMITT L. SPARKMAN; E.R. MOODY; ALBERT
FIRST; VICTORIA MCFARLAND,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 4:10-CV-139


Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM: *
       Laveal McGhee, Mississippi prisoner # 37135, filed a civil rights action
complaining that he was compelled to do work in the prison processing plant
that was not consistent with his Class III medical classification. He named as
defendants Emmitt Sparkman, the Superintendent of the Mississippi
Department of Corrections; E.R. Moody; Lieutenant Albert First; and
corrections officers Victoria McFarland and Eric Ford, and he requested


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-60910      Document: 00512804148      Page: 2   Date Filed: 10/15/2014


                                   No. 13-60910

injunctive relief and an award of punitive and compensatory damages. After
the claims against Sparkman, Moody, and Ford were dismissed, the district
court granted the motion for summary judgment of First and McFarland, and
it decertified McGhee’s in forma pauperis (IFP) status. McGhee has applied to
this court for leave to proceed IFP in this appeal. We have construed McGhee’s
motion for leave to proceed IFP as a challenge to the district court’s
determination that his appeal has not been brought in good faith. See Baugh
v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
      “[I]n certain circumstances, prison work conditions may amount to cruel
and unusual punishment.” Jackson v. Cain, 864 F.2d 1235, 1245 (5th Cir.
1989).   When the type of work to which the prisoner is assigned has
significantly worsened a prisoner’s medically serious pathological condition, an
Eighth Amendment violation is shown when the prisoner demonstrates that
the work was “assigned with the knowledge of the condition and that it will be
worsened thereby.” Id. at 1246 (internal quotation marks and quotation marks
omitted). The official’s behavior must rise above mere negligence. Id.
      McGhee asserts that Lieutenant First was informed of his medical
classification and that First and McFarland knew that McGhee’s Medical
Classification III made it improper for him to work in the processing plant. By
ordering him to work in the plant, McGhee contends, First caused him to suffer
an asthma attack that could have caused his death. He complains of the
district court’s failure to order injunctive relief.
      Although the summary judgment evidence shows that First had reason
to know of McGhee’s Class III status, it does not reflect that either First or
McFarland knew that the medical conditions that resulted in that
classification would be significantly worsened by requiring McGhee to work in
the processing plant. See id. Nor has McGhee presented evidence showing



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                                  No. 13-60910

that those medical conditions actually were significantly worsened as a result
of the work assignment. See id. McGhee raises no issue with respect to the
dismissal of his claims against Sparkman, Moody, or Ford. Accordingly, those
claims are abandoned. See Brinkmann v. Dallas Cnty. Dep. Sheriff Abner, 813
F.2d 744, 748 (5th Cir. 1987). Because McGhee’s claims fail on the merits, he
is not entitled to injunctive relief. See VRC LLC v. City of Dallas, 460 F.3d
607, 611 (5th Cir. 2006). The motion for leave to proceed IFP is DENIED, and
the appeal is DISMISSED. See Baugh, 117 F.3d at 202; Howard, 707 F.2d at
220; 5TH CIR. R. 42.2.




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