Steven Baughman v. Ron Hickman

Case: 17-20679 Document: 00515077635 Page: 1 Date Filed: 08/15/2019

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 17-20679 FILED

August 15, 2019

Lyle W. Cayce

STEVEN KURT BAUGHMAN, Clerk

Plaintiff - Appellant

v.

RON HICKMAN; DOCTOR MARCUS GUICE, Medical Doctor; LICENSED

VOCATIONAL NURSE K. JOHNSON; HARRIS COUNTY, TEXAS;

DEPUTY DURHAM; LICENSED VOCATIONAL NURSE JANE DOE;

HENRI MADIKO, Licensed Vocational Nurse; DEPUTY RICHARD PRUITT;

DAVID SOLCE, Doctor of Osteopathic Medicine; MEDICAL DOCTOR M.

HAQUE; STEPHEN WILLIAMS, Medical Doctor,

Defendants - Appellees

Appeal from the United States District Court

for the Southern District of Texas

Before HIGGINBOTHAM, SMITH, and SOUTHWICK, Circuit Judges.

LESLIE H. SOUTHWICK, Circuit Judge:

A pretrial detainee sued Harris County, Texas and county jail officials

for allegedly violating his constitutional rights by being deliberately indifferent

to his health, safety, and medical needs. He also sued a prison nurse for

retaliation and Harris County for negligence under Texas law. The district

court dismissed some of the claims on the pleadings and granted summary

judgment for the defendants on all others. We AFFIRM.

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FACTUAL AND PROCEDURAL BACKGROUND

Steven Baughman was in custody of the Harris County, Texas Sheriff’s

Office at the time the events relevant to this suit took place. On November 11,

2015, sheriff deputies transported him to a hospital from which he was

discharged the next day. Deputy Sheriff Richard Pruitt picked Baughman up

at the hospital in a sheriff’s-office van to return him to jail. Baughman alleges

that during this ride, Deputy Pruitt drove recklessly and caused Baughman,

who was handcuffed, shackled, and not secured by a seatbelt, to be thrown out

of his seat and injured when the van lurched after hitting a pothole or speed

bump.

Baughman further claims that once back at the jail, he sought medical

attention but was rebuffed by the jail’s medical staff. Those responsible are

said to be Nurse Henri Madiko, unknown Nurse Jane Doe, Deputy Bryan

Durham, and Drs. Stephan Williams and M. Haque. Baughman also alleges

that Drs. Williams and Haque, along with another sheriff-office doctor, David

Solce, generally denied him appropriate treatment.

Finally, Baughman claims that two and a half weeks after the van ride,

another nurse, Kellie Johnson, refused to administer his medication and then

retaliated against him after he filed an administrative complaint against her.

Proceeding pro se, Baughman sued Deputy Pruitt, Nurse Madiko, Nurse

Jane Doe, Deputy Durham, Dr. Williams, Dr. Solce, and Nurse Johnson in

their individual capacities. He also sued the jail’s interim Executive Director

for Health Services Dr. Marcus Guice and the former sheriff of Harris County

Ron Hickman for their supervisory roles. He brought his suit under 42 U.S.C.

§ 1983, claiming deliberate indifference to his health, safety, and medical

needs. Baughman also asserted a retaliation claim against Nurse Johnson.

Seeking county liability, he further sued Harris County along with Dr. Guice

and Sheriff Hickman in their official capacities. Last, Baughman asserted a

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negligence claim under the Texas Tort Claims Act against Harris County.

Baughman requested a declaration that his rights had been violated along with

injunctive relief and damages.

Deputy Pruitt, Nurse Madiko, Deputy Durham, Sheriff Hickman, Harris

County, Dr. Guice, and Nurse Johnson filed a joint motion for summary

judgment. Drs. Williams and Haque filed separate motions to dismiss under

Federal Rule of Civil Procedure 12(b)(6). Nurse Jane Doe and Doctor Solce

were never served, but the district court evaluated the claims against them

under the Prison Litigation Reform Act. The district court dismissed all of the

federal claims and declined to exercise supplemental jurisdiction over the

Texas-law claim. The district court also dismissed Baughman’s motions for

appointment of counsel and a stay.

Baughman appealed, contending the district court erred when it

dismissed his claims and refused to appoint counsel. He also filed a motion for

appointment of counsel in this court. Drs. Williams and Haque filed a motion

in this court for leave to file a sur-reply or alternatively to strike portions of

Baughman’s reply brief. These motions have been carried with the case.

DISCUSSION

The district court dismissed some of the claims as failing to state a claim

and granted summary judgment on others. “A dismissal for failure to state a

claim under Rule 12(b)(6) is reviewed ‘de novo, accepting all well-pleaded facts

as true and viewing those facts in the light most favorable to the plaintiff.’”

Whitaker v. Collier, 862 F.3d 490, 496-97 (5th Cir. 2017) (citation omitted). A

provision of the Prison Litigation Reform Act incorporates similar analysis by

allowing dismissal if the suit is frivolous, malicious, or fails to state a claim.

28 U.S.C. § 1915(e)(2)(B)(i)-(ii). A separate provision requiring a district court

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to screen prisoner cases before docketing them allows dismissal for similar

reasons. § 1915A(b)(1).

Our review of the grant of summary judgment is “de novo, viewing ‘all

facts and evidence in the light most favorable to the non-moving party’” and

ensuring “the movant shows that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” Burell v.

Prudential Ins. Co. of Am., 820 F.3d 132, 136 (5th Cir. 2016) (citations omitted).

I. Deliberate indifference claims

Baughman relies on the Eighth and Fourteenth Amendments for his

deliberate indifference claims. The Eighth Amendment ensures the safety of

convicted prisoners while due process under the Fourteenth Amendment

protects pretrial detainees. See Hare v. City of Corinth, 74 F.3d 633, 639 (5th

Cir. 1996) (en banc). In an affidavit Baughman filed in October 2017, he

explained that he had been “awaiting trial since April 2, 2014.” The proper

analysis of each category of claims is the same, as our “Fourteenth Amendment

case law concerning pretrial detainees [is based] on the Supreme Court’s

Eighth Amendment precedent concerning prisoners.” Garza v. City of Donna,

922 F.3d 626, 634 (5th Cir. 2019) (citing Hare, 74 F.3d at 643-44). The district

court analyzed the case using pretrial detention cases, and we will as well.

We classify a pretrial detention due process claim according to whether

it concerns a “condition of confinement” or an “episodic act or omission.”

Olabisiomotosho v. City of Houston, 185 F.3d 521, 526 (5th Cir. 1999) (citation

omitted). As is clear from our earlier explanation of the facts underlying

Baughman’s suit, he is making claims based on episodic acts or omissions. For

such claims, “we employ different standards depending on whether the liability

of the individual defendant or the municipal defendant is at issue.” Id. Both

standards require Baughman to “establish that the official(s) acted with

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subjective deliberate indifference.” Id. (citation omitted). Resolving some

arguably conflicting articulations of the required mental state for subjective

deliberate indifference, the en banc court stated this test: “(1) ‘the official must

both be aware of facts from which the inference could be drawn that a

substantial risk of serious harm exists,’ and (2) ‘he must also draw the

inference.’” Williams v. Hampton, 797 F.3d 276, 281 (5th Cir. 2015) (en banc)

(quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)).

The “official conduct must be ‘wanton,’ which is defined to mean

‘reckless.’” Alderson v. Concordia Par. Corr. Facility, 848 F.3d 415, 420 (5th

Cir. 2017). Subjective deliberate indifference “is an extremely high standard

to meet.” Domino v. Tex. Dep’t of Criminal Justice, 239 F.3d 752, 756 (5th Cir.

2001). County as opposed to individual liability has the additional

requirement that the “violation resulted from a [county] policy or custom

adopted and maintained with objective deliberate indifference.” Garza, 922

F.3d at 634 (citation omitted).

A. Van ride

Baughman claims that the van driver, Deputy Pruitt, “operated the van

recklessly . . . rapidly accelerating, rapidly braking, weaving in and out of

traffic and fail[ing] to keep a proper look-out” with Baughman in the back on

a steel bench where he was handcuffed, shackled, and not protected by a

seatbelt. Baughman’s affidavit identifies the cause of his actual injury was the

vehicle’s hitting a pothole or speed bump because the driver failed to keep a

proper lookout. The “explosive impact from striking the road hazard injured

[P]laintiff’s back and catapulted [P]laintiff from the steel bench causing him to

strike the ceiling of the security cage with the back of his head and neck, just

before throwing him forward against the front wall of the security divider, as

Deputy Pruitt hit the brakes.” Baughman in his complaint asserted that the

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deputy had acknowledged that “other prisoners have been injured during

transport, in a similar fashion.”

Baughman contends his case is similar to a precedent in which we

recognized sufficient allegations of deliberate indifference to survive sua sponte

dismissal by the district court during the initial screening of a prisoner’s case.

Rogers v. Boatright, 709 F.3d 403, 408 (5th Cir. 2013); see 28 U.S.C. § 1915A

(requiring review by the district court “as soon as practicable” of certain types

of civil complaints by prisoners, and dismissal if justified). In that case, a

corrections officer “was driving the van recklessly, darting in and out of traffic

at high speeds while [the inmate] was caged in the back . . . [seated] on a

narrow bench . . . shackled in leg irons and handcuffs . . . [with] no seatbelt;”

the officer “was driving so fast that he had to brake hard to avoid hitting a

vehicle in front of him;” the inmate “was thrown head-first into the end of the

cage;” and one officer told another “that other inmates similarly had been

injured.” Id. at 406, 409.

Baughman also discusses a case from another circuit, Brown v. Fortner,

518 F.3d 552 (8th Cir. 2008). There, three prison vans were traveling in a

convoy and collided with each other after going 75 miles per hour in a 55 mile-

per-hour zone and “pass[ing] other vehicles at inappropriate times.” Id. at 556.

The driver in the second van had not buckled the seatbelt of the plaintiff-

inmate, who was shackled, and he ignored pleas of multiple inmates to slow

down, even “turn[ing] up the radio” after one request. Id. There was no

evidence, however, that the driver of the third van “was asked to slow down

and refused” or knew that the plaintiff-inmate in the second van was not in a

seatbelt. Id. at 560. Finding that knowledge was the “critical difference

between” the drivers of the two vans, the Eighth Circuit held there was enough

evidence at the summary judgment stage to show the driver of the second van

was deliberately indifferent but not the driver of the third. Id. at 560-61.

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In the present case, Deputy Pruitt moved for summary judgment.

Unlike in our Rogers decision, which we held was improperly dismissed at the

screening stage, Baughman had to demonstrate genuine issues of material fact

that ultimately could allow a finding that Deputy Pruitt was subjectively –

actually – “aware of facts from which the inference could be drawn that a

substantial risk of serious harm exists” from the manner in which he was

driving the van, and that the deputy must also have drawn that inference yet

continued to drive dangerously. Williams, 797 F.3d at 281 (citation omitted).

The evidence here on summary judgment included an Internal Affairs

Investigative Report of March 1, 2016, a little more than three months after

the November 12, 2015 van ride. That report concluded that the accusations

against Pruitt for his driving were “unfounded.” Baughman’s affidavit

acknowledged that he did not remember much about the event, as he had been

given morphine and hydrocodone before the van ride and felt “knocked out.”

Affidavits from Deputy Pruitt and from the other officer in the van, Deputy

Barnett, stated that neither officer could recall the specific ride. Medical

records from the treatment Baughman received the day of the incident

“indicated there was no evidence of injury and the overall findings [of his

condition] were consistent with degenerative change.” He had many medical

problems well before this incident, perhaps affected by his weighing over 420

pounds.

Baughman’s evidence largely came from a sworn statement he gave in

December 2015. He states he was made to sit on a prison van bench that had

no seatbelts. Pruitt was not shown to have any responsibility for the fact there

were no seatbelts. Baughman stated generally that a deputy “drove in a

reckless manner when he accelerated and decelerated rapidly.” He then stated

that the van hit a speed bump or pothole, causing Baughman to be propelled

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from his seat. The statement does not detail further how the driving was

reckless.

As to whether this is enough evidence of to create a fact issue of

recklessness, we start with Deputy Pruitt’s affidavit which identifies the route

he took that day as including time on Interstate Highway 10. Speeding up and

speeding down on an expressway (or on any road), even if done “rapidly,” is not

evidence of recklessness, nor is the inability to avoid a pothole or speed bump.

At most, the sworn statement from someone sitting in the back of a van claimed

that the van was being driven with rapid speed changes (though not

necessarily speeding), and when the van hit something in the road, the

passenger was thrown from his seat. This is not evidence of driving in a

manner creating a substantial risk of serious harm.

Further, the driver’s subjective knowledge of reckless conduct is not

addressed at all in the sworn statement. Though Baughman’s complaint

stated that deputy Pruitt “acknowledged other prisoners have been injured” in

similar fashion, there is no mention of that in the sworn statement. Unlike in

Brown, there is no evidence that Baughman asked to have a seatbelt fastened

and Pruitt refused, or that he asked the deputy to slow down, or other evidence

that would be some support for the deputy’s awareness.

We conclude that there is insufficient information about Pruitt’s driving

and no evidence to allow a finding of Pruitt’s actual knowledge that the manner

in which he was driving created a substantial risk of harm. Merely negligent

driving by Deputy Pruitt would not support a violation of a constitutional right.

With the evidentiary burden on him at the summary judgment stage,

Baughman has failed to marshal evidence in support of this claim.

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B. Post-van ride incident

After his return to the jail, Baughman fell asleep in his cell for several

hours. His complaint alleges that when he awoke later that evening, he was

“in pain so severe he could not get out of his bunk,” that he “was literally crying

in pain,” and that he “was not even able to roll onto his side due to the pain.”

Baughman alleges that after he got the attention of an officer, Nurse Madiko

and two trustees arrived and carried Baughman to the medical unit.

Once there, Baughman alleges he “was not seen by a physician, was not

questioned by a physician, and was not given a physical examination or even

touched.” He asserts Nurse Jane Doe simply “shouted from the nurses station

that Dr. Haque had already written . . . a prescription,” commented that

Baughman also had a bottom bunk pass, and instructed security personnel to

remove Baughman. In response, Nurse Madiko and Deputy Durham ordered

Baughman to get off the stretcher. Baughman admits he then “cause[d] a

disturbance” that drew the attention of a supervising officer. Baughman

alleges that officer then ordered medical staff to attend to Baughman, after

which Baughman was sent back to a hospital. Baughman’s complaint

emphasizes the “severe” and readily apparent nature of the pain he

experienced before and while at the medical unit. The district court held

Baughman failed to state a claim against any of the defendants.

For an episodic act claim relying on an alleged denial or delay of medical

care, Baughman can show deliberate indifference by demonstrating that an

official “refused to treat him, ignored his complaints, intentionally treated him

incorrectly, or engaged in any similar conduct that would clearly evince a

wanton disregard for any serious medical needs.” Perniciaro v. Lea, 901 F.3d

241, 258 (5th Cir. 2018) (citation omitted). “A disagreement about the

recommended medical treatment is generally not sufficient to show deliberate

indifference, but the denial of recommended medical treatment is often

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sufficient to show deliberate indifference.” Carlucci v. Chapa, 884 F.3d 534,

538 (5th Cir. 2018). We of course examine each defendant’s actions

individually. See Meadours v. Ermel, 483 F.3d 417, 421-22 (5th Cir. 2007).

The complaint recognizes Jane Doe knew that a “doctor had already

written [Baughman] a prescription for Tylenol and issued him a bottom bunk

pass” and that such knowledge formed the basis for her order that Baughman

leave the medical area. That is, Baughman’s allegations demonstrate Jane

Doe was cognizant of his medical condition and treatment. Her purported

orders for Baughman to leave the medical unit simply indicate a decision he

did not need further medical attention. The agreement to this course of action

by Nurse Madiko, who the complaint alleges accompanied and observed

Baughman from his cell to the medical area, is similar. Baughman, in effect,

disputes the nurses’ decision on the medical attention he should have received,

which is insufficient to state a claim. Carlucci, 884 F.3d at 538.

Regarding Doctors Williams and Haque, the complaint at most implies

they were aware of Baughman’s arrival to the medical unit but did not attend

to him. This is not the same as alleging the doctors “‘refused to treat him,

ignored his complaints, intentionally treated him incorrectly, or engaged in

any similar conduct that would clearly evince a wanton disregard for any

serious medical needs.’” Perniciaro, 901 F.3d at 258 (citation omitted). To the

contrary, Baughman asserts nurses interacted with him and never notified a

doctor that Baughman needed evaluation. Last, Baughman’s complaint about

Deputy Durham, a non-medically trained lay person, is that he observed

Baughman in pain yet deferred to the decisions of multiple medical personnel.

This fails to state a claim against Deputy Durham. See Hester v. Donahoo, 47

F.3d 425 (5th Cir. 1995); 5TH CIR. R. 47.5.3.

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C. Subsequent medical treatment

Baughman also alleges Drs. Solce, Williams, and Haque generally

“denied [him] adequate pain medication” and “access to physical therapy.” The

district court held Baughman failed to state a claim. We agree as these

“conclusory allegations . . . will not suffice to prevent a motion to dismiss.”

Beavers v. Metro. Life Ins. Co., 566 F.3d 436, 439 (5th Cir. 2009) (citation

omitted).

Baughman further alleges that in a January 2016 meeting regarding his

back pain, Dr. Haque told him to not “expect to receive pain management . . .

or other services you could get if you weren’t in jail;” that “pain is all in the

mind and we must all learn to live with it;” and that the jail had “a limited

budget and . . . so many prisoner[s’] problems . . . to deal with.” Baughman

alleges these statements “demonstrate a deliberately indifferent attitude and

intent to deny adequate medical care.” The district court dismissed these

allegations for failure to state a claim. Again, we agree. Factual assertions

concerning Dr. Haque’s “attitude” and “intent” are not sufficient to allege he

actually “refused to treat [Baughman], ignored his complaints, intentionally

treated him incorrectly, or engaged in similar conduct.” Alderson, 848 F.3d at

422 (citation omitted).

D. Incidents involving Nurse Johnson

Baughman alleges that about two and a half weeks after the van ride,

Nurse Johnson visited his cell to administer pain medication and demanded

Baughman come to the door of the cell to receive it from her. Baughman

asserts his pain was so great he was unable to walk, and Johnson responded

that if he “wanted his medication . . . he needed to crawl to the door to get” it.

An officer allegedly offered to give Baughman his medication in his cell, but

Johnson refused to employ that option and left. Later, the complaint claims

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the officer escorted Baughman toward the jail’s medical unit to obtain his

medicine. They encountered Johnson and her pill cart in the hall. Johnson

again allegedly refused Baughman his medicine. The district court granted

summary judgment in Johnson’s favor. Johnson has raised qualified

immunity, placing the burden on Baughman to “demonstrate genuine issues of

material fact” regarding whether a violation of clearly established law

occurred. Michalik v. Hermann, 422 F.3d 252, 262 (5th Cir. 2005).

Johnson acknowledges she did not dispense Baughman’s medicine at his

cell nor later when she encountered him in the hall. She asserts, however, she

“did not feel comfortable entering [Baughman’s] cell” nor administering his

medication while he was unrestrained in the hallway. She swore in an

affidavit that she “followed the Jail procedures” for “high security” in

demanding Baughman receive the medication through an opening in his cell

and refusing to dispense it later when Baughman “was not properly restrained”

in the hall. She further swore Baughman could go to the medical unit to receive

his medication, which Baughman’s allegations also imply.

There is evidence in the record that Johnson was disciplined after

Baughman filed a grievance over these incidents and that she was ordered to

review the sheriff’s office policies on the administration of medications.

Baughman has not cited any evidence, though, that Johnson actually violated

jail policy. Indeed, in her affidavit, which she swore out after the ordered

review of the policies, she maintained that she had followed the appropriate

jail procedures. Baughman has failed to demonstrate a genuine issue of

material fact disputing that Johnson was hesitant to administer his medicine

because of security concerns and jail policy. Refusing to give Baughman his

medicine under these circumstances, especially when he could otherwise

obtain it at the jail’s medical unit, does not “show deliberate indifference to

serious medical needs.” Alderson, 848 F.3d at 422.

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E. Official capacity defendants; Dr. Guice and Sheriff Hickman in

their individual capacities

Baughman contends the County, Dr. Guice, and Sheriff Hickman are

liable “in their Official Capacities and Individual Capacities for policies at the

[jail].” Because an underlying constitutional violation is required to impose

liability on the governmental body or supervisory liability on Dr. Guice and

Sheriff Hickman as individuals, Baughman’s failure to demonstrate a

constitutional violation regarding Deputy Pruitt, Nurse Jane Doe, Nurse

Madiko, Deputy Durham, and Drs. Solce, Williams, and Haque disposes of any

purported liability of Harris County, Dr. Guice, and Sheriff Hickman on those

claims. See Brumfield v. Hollins, 551 F.3d 322, 327-29, 331-32 (5th Cir. 2008).

We resolved the claim against Nurse Johnson, however, by applying

qualified immunity and shifting the evidentiary burden to Baughman. The

benefits of that doctrine’s application to Nurse Johnson do not extend to the

County. See Owen v. City of Independence, 445 U.S. 622, 635-38 (1980).

Further, Dr. Guice’s and Sheriff Hickman’s actions in their individual

capacities were not part of our prior analysis. We consider, then, if Baughman

has sufficient evidence to support claims against the County and Dr. Guice and

Sheriff Hickman individually. These claims, whether seeking official or

individual liability, require Baughman to connect the existence of a policy,

widespread and settled practice, or a failure to train to a constitutional

violation. Brumfield, 551 F.3d at 327-29, 331-32.

Baughman hinges his claims on allegations the jail’s medical personnel

routinely ignore prisoners’ complaints, summarily turn them away when they

seek medical attention, and refuse them pain treatment and therapy. Aside

from the previously mentioned comments by Dr. Haque, which are insufficient,

Baughman’s allegations are not supported by specific facts. He directs us to

review a few hundred pages of district court filings. “Although we liberally

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construe briefs of pro se litigants and apply less stringent standards . . . pro se

parties must still brief the issues and reasonably comply with the standards of

Rule 28.” Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995). These claims

were properly dismissed.

II. Retaliation claims

Baughman filed a grievance with the jail several days after the incidents

involving Nurse Johnson. He alleges that she then retaliated by ordering his

wheelchair be taken from his cell and by complaining to jail officials that

medical personnel were improperly entering his cell to administer pain

medication. The district court granted summary judgment to Johnson and the

County Defendants.

The First Amendment protects a detainee from retaliation for filing

grievances against prison officials. See DeMarco v. Davis, 914 F.3d 383, 388

(5th Cir. 2019). To sustain such a claim, a detainee “must establish (1) a

specific constitutional right, (2) the defendant’s intent to retaliate against

[him] for his . . . exercise of that right, (3) a retaliatory adverse act, and (4)

causation.” Id. (citation omitted). Even if an act might be “motivated by

retaliatory intent,” it is not a constitutional violation if the effects of it “are so

de minimis that they would not deter the ordinary person from further exercise

of his rights.” Morris v. Powell, 449 F.3d 682, 686 (5th Cir. 2006). As in the

deliberate indifference context, Baughman must tie a Section 1983 First

Amendment claim to a county policy or lack of training to trigger official

liability or individual liability for Dr. Guice and Sheriff Hickman. Brumfield,

551 F.3d at 331; Thompkins v. Belt, 828 F.2d 298, 303-04 (5th Cir. 1987).

Baughman does not even allege any harm from Johnson’s purported

retaliatory acts. The circumstances in which Nurse Johnson ordered his

wheelchair be taken are unclear. Nonetheless, there is no evidence as to the

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result of such an order. Examples of what is not said is whether another

wheelchair was not timely found or that Baughman had to maneuver through

the jail without one. There is also no evidence that Johnson’s alleged reporting

of medical personnel who entered Baughman’s cell had any consequence for

Baughman.

III. Supplemental jurisdiction; motions for counsel and leave to file sur-reply

With all federal claims dismissed and diversity lacking, the district court

refused to exercise supplemental jurisdiction over Baughman’s state law claim.

Such a refusal is generally not an abuse of discretion. Heggemeier v. Caldwell

Cnty., 826 F.3d 861, 872 (5th Cir. 2016). In the absence of “exceptional

circumstances,” it is not an abuse of the district court’s discretion not to appoint

counsel. Naranjo v. Thompson, 809 F.3d 793, 801 (5th Cir. 2015). We also

exercise our discretion not to appoint counsel now. Cooper v. Sheriff, Lubbock

Cnty., 929 F.2d 1078, 1084 (5th Cir. 1991).

AFFIRMED. All pending motions are DENIED.

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