Birmingham vs. Quarterman, (5th Cir. 2008)
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 18, 2008
No. 07-20192
Summary Calendar Charles R. Fulbruge III
Clerk
THOMAS EDWARD BIRMINGHAM
Plaintiff-Appellant
v.
NATHANIEL QUARTERMAN; THOMAS PRASIFKA; LIEUTENANT JOHN
DOE; DR OWEN J MURRAY; GINA M SEVILLE; DR MERIDETH WARNER
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:05-CV-2743
Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:* Thomas Edward Birmingham, Texas prisoner # 1244911, appeals the district court’s summary judgment dismissal of his 42U.S.C. § 1983 complaint against various Texas Department of Criminal Justice (TDCJ) officials and physicians. Birmingham argued in his complaint that the defendants acted with deliberate indifference to his serious medical needs after he broke his foot while in prison. * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. In his opening brief, Birmingham argues only that the district court erred in not requiring the defendants to provide him with copies of his x-rays as part of his medical records and that discovery was incomplete as a result.
Birmingham also lists the following additional issues without any supporting argument: (1) whether the district court erred in granting summary judgment without notifying Birmingham of his right to amend his complaint, and (2) whether the district court abused its discretion in denying his request for appointment of counsel. Because Birmingham does not argue any of his deliberate indifference claims, nor does he challenge any of the district court’s determinations concerning those claims, and because Birmingham has not briefed the complaint amendment and appointment of counsel issues, Birmingham has abandoned his deliberate indifference claims and the two listed issues. See Geiger v. Jowers, 404 F.3d 371, 373 n.6 (5th Cir. 2005). In a reply brief, Birmingham for the first time on appeal argues the merits of his substantive claims against some of the defendants. However, we do not consider arguments that are raised for the first time in a reply brief. See Cinel v.
Connick, 15 F.3d 1338, 1345 (5th Cir. 1994).
As to Birmingham’s argument that the district court erred in failing to provide him with his x-rays and that his discovery was incomplete as a result, Birmingham was provided with radiologists’ reports concerning the x-rays, and he has not shown how his or the district court’s untrained analysis of the actual x-rays would have created a genuine issue of material fact concerning the issue whether the defendants acted with deliberate indifference to his medical needs.
See FED. R. CIV. P. 56(c), (f). Accordingly, Birmingham has not shown that the district court abused its discretion in denying his request for the x-rays. See Krim v. BancTexas Group, Inc., 989 F.2d 1435, 1441 (5th Cir. 1993).
AFFIRMED; MOTION FOR APPOINTMENT OF COUNSEL DENIED.
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