The opinion
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-10362
VERLIE LEE HENDERSON,
Plaintiff-Appellant,
versus
TRACY BILLINGSLEA ET AL.,
Defendants-Appellees.
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VERLIE LEE HENDERSON,
Plaintiff-Appellant,
versus
GARY L. JOHNSON ET AL.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC Nos. 7:95-CV-50-X
7:96-CV-30-X
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June 30, 1998
Before JOLLY, HIGGINBOTHAM and DeMOSS, 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that this opinion should not be published and is not precedent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.
No. 97-10362
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Verlie Lee Henderson, Texas inmate #199786, seeks to proceed
in forma pauperis (IFP) in the appeal of the dismissal of his
civil rights complaint. The district court certified pursuant to
Fed. R. App. P. 24(a) that Henderson’s appeal was not taken in
good faith. Henderson’s motion for IFP is treated as a challenge
to the district court’s certification. See Baugh v. Taylor, 117
F.3d 197, 202 (5th Cir. 1997).
As a preliminary matter, Appellees Mitchell and Woods argue
that this court lacks jurisdiction to entertain Henderson’s
motion for IFP on appeal because Henderson did not file a timely
notice of appeal from the district court’s summary judgment for
them. The summary judgment, however, was not a final order
inasmuch as the suit against Mitchell and Woods had been
consolidated with another suit in which Henderson’s claims
against those defendants remained. See Harcon Barge Co., Inc. v.
D&G Boat Rentals, Inc., 746 F.2d 278, 287-88 (5th Cir. 1984) (en
banc); Bader v. Atlantic Intern., Ltd., 986 F.2d 912, 914 (5th
Cir. 1993); Fed. R. Civ. P. 54(b).
Henderson argues that the district court erred when it
dismissed his excessive-use-of-force claim against Officer
Billingslea as frivolous. Because the questions posed by the
district court to Henderson did not adduce why or in what manner
Billingslea struck Henderson, his excessive-use-of-force claim
may have merit. See Hudson v. McMillian, 503 U.S. 1, 6-7 (1992);
Baldwin v. Stalder, 137 F.3d 836, 840-41 (5th Cir. 1998).
No. 97-10362
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Accordingly, IFP is GRANTED. See Howard v. King, 707 F.2d 215,
220 (5th Cir. 1983). Given that the appellees have submitted a
brief, the dismissal of Henderson’s excessive-use-of-force claim
is VACATED and remanded for a hearing in accordance with Spears
v. McCotter, 766 F.2d 179 (5th Cir. 1985). See Wesson v.
Oglesby, 910 F.2d 278, 281 (5th Cir. 1990). Because Officer
Billingslea has not been served at this time, the district court
may need to consider dismissal of Henderson’s claim against him
for failure to prosecute.
Henderson’s failure-to-protect claim against Defendants
Mitchell and Borden may have merit depending on the facts
developed at the Spears hearing. See Neals v. Norwood, 59 F.3d
530, 533 (5th Cir. 1995); Farmer v. Brennan, 511 U.S. 825, 837
(1994). The district court should also consider whether its
earlier grant of summary judgment to Mitchell precludes
Henderson’s later-alleged allegations against that defendant.
Accordingly, the dismissal of that claim is also VACATED and
REMANDED for further proceedings in the district court.
Henderson argues that Defendants Smythe, Johnson, Stephens,
and Peterson are liable to him for failing to investigate the
alleged assault. These defendants are entitled to qualified
immunity on this claim because Henderson has not demonstrated a
“clearly established constitutional right” to have complaints
investigated. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1992);
Siegert v. Gilley, 500 U.S. 226, 231 (1991). The district
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court’s dismissal of Henderson’s failure-to-investigate claim is
AFFIRMED.
Henderson does not argue on appeal, as he did in the
district court, that Defendants Scott, Johnson, McAuliffe,
Gilbert, Woods, Pulunsky, Stephens, Castro, and Eason are liable
to him for failing to train Officer Billingslea properly.
Accordingly, his claim against those defendants is deemed
abandoned. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.
1993).
Henderson’s motion for the appointment of counsel is
DENIED. See Cupit v. Jones, 835 F.2d 82, 86 (5th Cir. 1987);
Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982).
Henderson’s motion for a default judgment against Officer
Billingslea is also DENIED, as it should be brought in the
district court.
Henderson’s motion to consolidate the instant motion with
his appeal in a suit against the Allred Medical Department for
inadequate medical care is DENIED.
The judgment of the district court is VACATED and REMANDED
in part; AFFIRMED in part; and Henderson’s motions are DENIED.