The opinion
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-40668
Summary Calendar
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JACKIE DON GARDNER,
Plaintiff-Appellant,
versus
BERNARD MALONE; DANNY PHILLIPS
and B. J. McCOY,
Defendants-Appellees.
_______________________________________________________
Appeal from the United States District Court for
the Eastern District of Texas
(3:94-CV-25)
_______________________________________________________
February 9, 1996
Before REAVLEY, SMITH and PARKER, Circuit Judges.
PER CURIAM:*
Jackie Don Gardner, proceeding pro se and in forma pauperis,
brought two § 1983 actions against Lamar County Jail medical
clerk Bernard Malone, Lamar County Jail “head jailer” Danny
Phillips, and Lamar County sheriff B.J. McCoy (“Defendants”).
Gardner had been brought to the Lamar County Jail for violating
his parole. While there Gardner alleged he was denied medical
care in violation of the Eighth Amendment and was denied access
*
Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule
47.5.4.
to the courts in violation of the First and Fourteenth
Amendments. The district court granted summary judgment for the
defendants, and then denied Gardner’s postjudgment “Motion for
Reconsideration of Summary Judgment.” Gardner now appeals.
Because summary judgment was appropriate and because the district
court did not abuse its discretion in denying Gardner’s motion,
we affirm.
BACKGROUND
Gardner arrived at the Lamar County Jail as a parole
violator with a right arm amputation and a prosthetic arm. On
February 16, 1994, Gardner developed a knot on his stump and put
in a sick call request. Gardner asserts he was denied medical
attention for 37 days for the knot on his stump.
Gardner asked to go to the law library to find out what he
could do about this delay, but was told he did not have any case
pending and did not need access to a law library. On May 11,
1994, Gardner then filed his first suit under 42 U.S.C. § 1983
asserting a denial of access to a law library and deliberately
indifferent medical care.
On May 7, 1994, jail officials confiscated Gardner’s
prosthetic arm after a fight broke out at the jail. Gardner
asked that his stump be wrapped, and a Dr. Work ordered his stump
wrapped two days later. Gardner’s stump was wrapped three times
in the next week. Gardner, asserting it should have been wrapped
every day, again asked for access to a law library and was again
refused. On June 7, 1994 Gardner filed a second § 1983 suit
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asserting inadequate medical care in not having his stump wrapped
daily and denial of access to a law library. The district court
consolidated the two complaints and referred the cases to a
magistrate.
The defendants filed a motion for summary judgment,
asserting the defense of qualified immunity. The magistrate
judge recommended that the motion be granted after determining
that the defendants had not been deliberately indifferent to
Gardner’s serious medical needs and that Gardner had not
demonstrated prejudice from the denial of access to a law
library. By order entered April 28, 1995, the district court
adopted the report and recommendation of the magistrate, granted
the defendants’ motion for summary judgment, and dismissed
Gardner’s claims with prejudice.
Gardner filed a “Motion for Reconsideration of Summary
Judgment” on May 22, 1995, reasserting his previous claims and
adding allegations of retaliation by jail officials for
exercising his right of access to the courts. The district court
initially ordered a hearing on the motion, but on reconsideration
vacated that order and denied Gardner’s motion. Gardner now
appeals.
DISCUSSION
We treat Gardner’s motion for reconsideration as a Rule
60(b) motion because it was filed more than ten days after the
entry of judgment. See Lavespere v. Niagara Mach. & Tool Works,
Inc., 910 F.2d 167, 173 (5th Cir. 1990), cert. denied, 114 S. Ct.
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171 (1993). We review the district court’s decision denying the
motion for abuse of discretion. Carimi v. Royal Caribbean Cruise
Line, Inc., 959 F.2d 1344, 1345 (5th Cir. 1992). We review
summary judgment de novo. International Shortstop, Inc. v.
Rally’s, Inc., 939 F.2d 1257, 1263 (5th Cir. 1991), cert. denied,
502 U.S. 1059 (1992).
Denial of Adequate Medical Care
Gardner contends on appeal (and contended in his motion for
reconsideration) that the Lamar County Jail had no provisions for
handicapped prisoners, such as safety rails, controlled access to
showers, and non-skid floors, thus causing him to fall in the
shower, and that he received inadequate medical care for the
injury to his stump caused by his fall. He claims that the jail
failed to abide by the standards established under the Americans
with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq., and
that this failure constituted cruel and unusual punishment under
the Eighth Amendment. He also claims that his jailers and
inmates ridiculed and abused him due to his handicapped status.
These claims were raised for the first time in the motion
for reconsideration, however. In his initial complaint, Gardner
only alleged that he had been denied medical care for thirty-
seven days for a “large knot” that had formed on his stump and
requested that “medical treatment [be] easier to get.” In his
supplemental complaint, Gardner alleged that his prosthetic arm
had been taken from him, that his stump was not being wrapped
daily as ordered by a doctor (but was instead wrapped only every
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third or fourth day), that he had not been moved from the floor
to a bottom bunk as a doctor had ordered, and that he had been
denied medical treatment in February and March of 1994.
This court need not consider arguments that were raised for
the first time in a postjudgment motion. Hanchey v. Energas Co.,
925 F.2d 96, 99 (5th Cir. 1990); Fehlhaber v. Fehlhaber, 681 F.2d
1015, 1030 (5th Cir. 1982), cert. denied, 464 U.S. 818 (1983).
An issue not properly preserved for appeal will not be considered
unless it is a purely legal one and the error is so obvious that
failure to consider it would result in a miscarriage of justice.
Fehlhaber, 686 F.2d at 1030. Here the issues are factridden.
Nor can we say that the district court abused its discretion
when it denied Gardner’s postjudgment motion without holding a
Spears hearing on his new allegations. Gardner had ample
opportunity to raise these claims earlier in the proceedings.
As for his original claims, Gardner must prove that
officials acted with deliberate indifference to Gardner’s serious
medical needs. Wilson v. Seiter, 501 U.S. 294, 303 (1991). The
medical records submitted by the defendants demonstrate that
Gardner received medical care for all his various medical
complaints. The medical records demonstrate that his stump was
monitored by two different doctors and that Gardner received
antibiotics and treatment for the condition from the time he
first complained of the knot.
Gardner’s complaint that officer Malone wrapped the stump
only every three days rather than every day does not demonstrate
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deliberate indifference to a serious medical need. The doctor
prescribed wrapping with an ace bandage. Malone did so. Gardner
complained about Malone’s technique and Malone was given
instruction by the doctor. The defendants are entitled to
summary judgment on Gardner’s medical care claims.
Denial of Access to a Law Library
Prisoners have a constitutional right of access to the
courts, and that access must be adequate, effective, and
meaningful. Bounds v. Smith, 430 U.S. 817 (1977). Access to the
courts is protected by the First Amendment right to petition for
redress of grievances and the Fourteenth Amendment guarantees of
procedural and substantive due process. Jackson v. Procunier,
789 F.2d 307, 310-11 (5th Cir. 1986). This right can be
satisfied through appointed counsel, access to a law library, or
access to legally trained paraprofessionals. Bounds, 430 U.S. at
830-31. The right of access includes the ability to file a
legally sufficient claim. Morrow v. Harwell, 768 F.2d 619, 623
(5th Cir. 1985). The filing of a legally cognizable complaint
moots a right of access claim. Mann v. Smith, 796 F.2d 79, 84
(5th Cir. 1986).
In his complaints, Gardner claimed he was denied access to
the courts with regard to his medical care claims. Clearly,
however, the medical care claims were legally cognizable, and
under Mann summary judgment on the denial of access claims is
appropriate.
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In his motion for reconsideration Gardner alleges he was
denied access not only for his medical care claims but also for
certain other legal matters, including a parole violation
revocation hearing, a social security claim, and a misdemeanor
charge of DWI-Second Offense. Gardner may have hinted at these
other legal matters in his objections to the magistrate’s report,
where he stated:
(10) Further The Petitioner Had Other Legal Interest (sic)
In Which He Requested Access, And Had He Been Allowed That
Access He Would Have Stated Those Interst (sic) As Well In
His Original Complaint, And The Petitioner Would Note That
In His Answer To The Defendants Motion For Summary Judgement
He Did In Fact Make Mention Of That Fact On Page Eight (8)
Section VIII By Stating That He Did Have Legal Interest In
Action At The Time Of Request.
The district court did not abuse its discretion in refusing
to consider the new facts alleged in Gardner’s objections or
postjudgment motion. See Macias v. Raul A., 23 F.3d 94, 97 (5th
Cir.), cert. denied, 115 S.Ct. 220 (1994) (a plaintiff who
clarifies his claims in his objections or a motion for
reconsideration is not entitled to have those claims considered
as amendments to his complaint). Courts are “bound by the
allegations in the complaint, and are not free to speculate that
the plaintiff ‘might’ be able to state a claim if given yet
another opportunity to add more facts to the complaint.” Id.
Retaliation
Gardner argues in his postjudgment motion that he was
retaliated against for exercising his right of access to the
courts. The allegations of retaliation include being put in
solitary confinement, being ridiculed and abused by guards and
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inmates, and being denied medical care. Gardner’s stay in
solitary confinement lasted from June 1, 1994, until his transfer
to another facility on July 6, 1994.
If Gardner raised his retaliation claim for the first time
in his Rule 60(b) motion, as the jail officials argue, this court
need not consider the issue on appeal, see Hanchey, 925 F.2d at
99; Fehlhaber, 681 F.2d at 1030, and the district court did not
abuse its discretion in denying the motion on this ground.
It appears, however, that Gardner raised a retaliation claim
in his supplemental complaint of June 7, 1993, in which he
alleged that he was placed in solitary confinement the day after
jail officials discovered he had filed the first of his civil
rights suits.1
Nevertheless we cannot say that the district court abused
its discretion in denying his postjudgment motion. Gardner made
no mention of his retaliation claim in response to the
defendants’ motion for summary judgment or in his objections to
the magistrate’s report and recommendation. Nor has he made any
1
Relevant portions of that complaint read as follows:
(3) May 9 Dr Work asked that I be moved to a bottom bunk
and taken off the floor. Nothing was done untill May
31. Just before jail standards came to inspect the new
jail at that time I was placed in solitary confindment
(we get to shower and use phone after 6 p.m. only) I
was told this was the only bottom bunk in the jail.
Also no TV or legal library.
(4) All my legal [mail] is open before it gets to me. . . .
(6) On May 14 I filed Civil Action No. 3.94cv25 because of
medical treatment. [the first complaint] On May 24,
1994 Judge William Wayne Justice assigned to your [the
magistrate’s] court. On June 1 1994 this letter was
returned to me opened this is the reason I was put in
Lock down.
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sworn statements, in his opposition to summary judgment or
otherwise, creating a genuine issue of material fact regarding
his retaliation claim. We cannot find an abuse of discretion in
the district court’s denial of Gardner’s motion. See Fehlhaber,
681 F.2d at 1030 (failure to brief and argue an issue is grounds
for finding that the issue has been abandoned).
CONCLUSION
Gardner’s appeal is without merit. He did not receive
deliberately indifferent medical care, he was not denied access
to the courts, and the district court did not abuse its
discretion in refusing to consider his retaliation claim and the
new factual allegations contained in his Rule 60(b) motion. The
judgment of the district court is affirmed.
AFFIRMED.
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