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Gordon v. Police Jury, 01-30146 (2001)

Court: Court of Appeals for the Fifth Circuit Number: 01-30146 Visitors: 40
Filed: Oct. 30, 2001
Latest Update: Mar. 02, 2020
Summary: UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 01-30146 Summary Calendar MARCUS B GORDON, SR Plaintiff-Appellant, VERSUS POLICE JURY OF JEFFERSON DAVIS PARISH; RICHARD EDWARDS, Individually and in his official capacity; WALLACE SIEMEN, Individually and in his official capacity; MARK PETRY Defendants-Appellees. Appeal from the United States District Court for the Western District of Louisiana (No. 99-CV-669) October 26, 2001 Before DeMOSS, PARKER, and DENNIS, Circuit Judges. PER CURIAM:
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                  UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                             No. 01-30146
                           Summary Calendar



                        MARCUS B GORDON, SR

                                               Plaintiff-Appellant,


                                VERSUS


                   POLICE JURY OF JEFFERSON DAVIS
               PARISH; RICHARD EDWARDS, Individually
                    and in his official capacity;
                  WALLACE SIEMEN, Individually and
                in his official capacity; MARK PETRY

                                              Defendants-Appellees.




           Appeal from the United States District Court
               for the Western District of Louisiana
                          (No. 99-CV-669)

                           October 26, 2001

Before DeMOSS, PARKER, and DENNIS, Circuit Judges.

PER CURIAM:*

      Marcus B. Gordon, Sr., appeals the district court’s partial

dismissal of his complaint and its entry of judgment on the

remainder of his claims.    We find no error and now affirm.   We



  *
    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opinion should not be published and is not precedent except under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.
view this case as straightforward, making the appointment of

counsel unnecessary.   See Ulmer v. Chancellor, 
691 F.2d 209
, 213

(5th Cir. 1982).

     Gordon alleges a series of constitutional violations (about

29 in all) stemming from his pretrial detention at the Jefferson

Davis Parish jail.   The district court reviewed his complaint

pursuant to 28 U.S.C. § 1915A and dismissed certain claims as

frivolous under subsection (b)(1) of that provision.       The court

entered judgment against Gordon on the remainder of his claims

pursuant to FED. R. CIV. P. 56(c).      We review claims dismissed

pursuant to § 1915A for an abuse of discretion.       See Berry v.

Brady, 
192 F.3d 504
, 507 (5th Cir. 1999).       Claims disposed of on

summary judgment are of course reviewed de novo.       See Morris v.

Covan World Wide Moving, Inc., 
144 F.3d 377
, 380 (5th Cir. 1998).

     Gordon brings this suit pursuant to 42 U.S.C. § 1983,

arguing that the conditions of his confinement violated the

Constitution.   Gordon must show that he suffered a physical

injury to sustain such a claim.      Unless a physical injury is

shown, and so long as he is no longer a detainee at the parish

jail, we cannot consider any of the other supposed wrongs

committed against Gordon.   See 42 U.S.C. § 1997e(e)(“No federal

civil action may be brought by a prisoner . . . for mental or

emotional injury suffered while in custody without a prior

showing of physical injury.”); Herman v. Holiday, 
238 F.3d 660
,


                                  -2-
665 (5th Cir. 2001)(holding petition for injunctive relief

against continued exposure to unsafe or life-threatening

conditions moot where prisoner no longer incarcerated at

offending institution).

     We conclude that the district court’s entry of judgment

against Gordon was proper, there not being a genuine issue of

material fact that the conditions of his confinement were

responsible for any physical injury.    The only physical injury

Gordon complains of is back pain, which he suggests resulted from

restrictions on his ability to exercise.    But more than Gordon’s

own suspicion about the cause of his back pain is required to

avoid judgment.   To impute his ailment to the conditions of his

confinement, there must be at least some competent evidence that

would allow such a deduction.    We see none.   In fact, there is

evidence that Gordon himself was uncertain about the cause of his

pain or that lack of exercise caused him to suffer any specific

injury at all.    We conclude that this evidence, Gordon’s unsigned

April 28, 2000 deposition, is competent, Gordon having failed to

direct us to any inaccuracies.    See Vukadinovich v. Zentz, 
995 F.2d 750
, 754 (7th Cir. 1993).

     The district court correctly dismissed or granted judgment

on Gordon’s other claims.   Each fails because there is no

allegation of physical injury or of Gordon’s continued detention

at the parish jail.   For example, Gordon’s claims that he was



                                 -3-
denied medical treatment, including dental care, and that jail

personnel withheld his medicine, are unaccompanied by any

accusation of resulting physical injury.   Gordon’s other claims,

such as that he was not permitted to receive a newspaper, are now

moot, Gordon having been transferred to another place of

incarceration.   Finally, that he did not have access to a law

library does not merit relief because at the time he was

represented by counsel.   See Degrate v. Godwin, 
84 F.3d 768
, 769

(5th Cir. 1996).

     AFFIRMED.   Motion for appointment of counsel DENIED.




                                -4-

Source:  CourtListener

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