Ferguson v. Ellis, et al

United States Court of Appeals
for the Fifth Circuit

No. 19-60165
Summary Calendar

James Ferguson,

Plaintiff—Appellant,

versus

Officer Bradley Ellis; Officer Kelesha Williams;
Warden Frank Shaw; Major Michael Rice; Captain
Richard Cooney; Lieutenant Alma Wren; Tony Donald,
Unit #5 Manager,

Defendants—Appellees.

Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:17-CV-165

Before Haynes, Willett, and Ho, Circuit Judges.
Per Curiam:*
James Ferguson, a Mississippi prisoner, appeals the summary-
judgment dismissal of his 42 U.S.C. § 1983 complaint. He argues that the

*
Pursuant to 5th Circuit 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opinion should not be published and is not precedent except under the limited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 5th Circuit Rule 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
December 14, 2020

Lyle W. Cayce
Clerk
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No. 19-60165
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defendants violated his Eighth Amendment rights by failing to protect him
from injury at the hands of another inmate. He also challenges the district
court’s denial of his motion for a preliminary injunction and a temporary
restraining order against the Mississippi Department of Corrections
Commissioner, the MDOC Deputy Commissioner, and the Director of the
state’s Administrative Remedy Program on the grounds that the program
violates prisoners’ right of access to the courts.
1

We liberally construe pro se pleadings. See Melot v. Bergami, 970 F.3d
596, 599 & n.12 (5th Cir. 2020). Even pro se parties, however, must
reasonably comply with Federal Rule of Appellate Procedure 28(a)(8), which
states that the appellant’s brief must include argument, with the “appellant’s
contentions and the reasons for them.” Fed. R. App. P. 28(a)(8)(A); see
Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993) (holding a pro se litigant
to this requirement). An appellant’s failure to point to any error in the district
court’s reasoning puts him in the same position as if he had not appealed the
judgment at all. Brinkmann v. Dallas Cty. Deputy Sheriff Abner, 813 F.2d 744,
748 (5th Cir. 1987). In addition, we do not consider issues raised for the first
time in a reply brief. See Warren v. Chesapeake Exploration, L.L.C., 759 F.3d
413, 420 (5th Cir. 2014); Morin v. Moore, 309 F.3d 316, 328 (5th Cir. 2002).
I
The district court granted summary judgment in favor of Defendants
Shaw, Cooney, Wren, Donald, and Rice for failure to exhaust. The district
court granted summary judgment in favor of Defendants Ellis and Williams
based on its conclusion that Ferguson failed to show conditions posing a
substantial risk of serious harm and deliberate indifference to the risk.

1
Ferguson also requested the appointment of counsel on appeal. The court has
denied this motion.
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In his reply brief, Ferguson argues that he exhausted his claims against
Defendants Shaw, Cooney, Wren, Donald, or Rice because prisoners can file
grievances whether or not they are “aware of all defendants”; therefore,
Ferguson reasons, he did not need to identify these defendants. Having failed
to brief this argument in his opening brief, Ferguson has abandoned any
challenge to the district court’s dismissal of the claims against Defendants
Shaw, Cooney, Wren, Donald, or Rice on exhaustion grounds. See Warren,
759 F.3d at 420; Morin, 309 F.3d at 328. Regardless, Ferguson fails to identify
any error in the district court’s reasoning. See Yohey, 985 F.2d at 224–25;
Brinkmann, 813 F.2d at 748.
Ferguson further argues, as to the district court’s Eighth Amendment
merits conclusion, that the correctional officers allowed a fellow inmate to
“dash” Ferguson “in his face with” an unknown liquid, urine, a chemical,
or some combination. In addition, Ferguson asserts in his reply, he was
physically injured on May 5, 2015.
By raising his May 5, 2015 injuries only on reply, Ferguson has
abandoned any argument based on those injuries. See Warren, 759 F.3d at
420; Morin, 309 F.3d at 328. Moreover, Ferguson has not shown that the
correctional officers were aware of any facts supporting an inference that
another inmate represented a danger to Ferguson and that a substantial risk
of serious harm existed. See Farmer v. Brennan, 511 U.S. 825, 832–33 (1994);
Neals v. Norwood, 59 F.3d 530, 533 (5th Cir. 1995). Therefore, Ferguson
cannot establish a violation of his Eighth Amendment right to be protected
from harm at the hands of another inmate.
II
The district court denied Ferguson’s motion for a preliminary
injunction and a TRO for two reasons. First, the district court concluded,
Ferguson failed to show that either the MDOC or the ARP Director was
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No. 19-60165
4
party to the suit or had notice of the motion. Second, Ferguson failed to show
that he would suffer immediate irreparable injury in the absence of the
requested relief.
Ferguson asserts that the district court made “incorrect
stat[e]ments” when denying his motion for a preliminary injunction and
TRO involve. As he did before the district court, Ferguson argues the merits
of his claims, challenging the alleged inadequacies of the administrative
grievance process. But he fails to address the reasons underlying the district
court’s denial of the motion for preliminary injunction and a TRO, and
therefore Ferguson has abandoned the issue. See Yohey, 985 F.2d at 224–25;
Brinkmann, 813 F.2d at 748.
***
The judgment of the district court is AFFIRMED.
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