Cowart v. Scott, et al

*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opinion should not be published and is not precedent except under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 THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-20967
Summary Calendar
WILLIE COWART,
Plaintiff-Appellant,
versus
GARY L. JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION; WATKINS, Warden;
F. CHAMBLISS, Correctional Officer III;
MARGARET MOSLEY; WAYNE SCOTT,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-99-CV-4280
June 11, 2002
Before GARWOOD, JONES, and STEWART, Circuit Judges.
PER CURIAM:*
Willie Cowart, Texas prisoner #807478, appeals the dismissal
of his 42 U.S.C. § 1983 complaint under 28 U.S.C. §
1915(e)(2)(B)(i). He asserts on appeal that the district court
erred in dismissing his complaint after failing to ask him whether

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defendant Golden Autry was an employee of the state, thereby
rendering his actions “under color of state law” for 42 U.S.C. §
1983 purposes. However, in his pleadings below Cowart alleged
under oath that Autry was an “inmate,” with a TDCJ number, and
never suggested before the district court, in any filing or at the
Spears hearing, that Autry was an employee of the state. No error
is shown. Moreover, even if Autry were a “state actor” under 42
U.S.C. § 1983, Cowart’s failure to exhaust remedies against prison
employees before proceeding in federal court constitutes a bar to
his claims. See Porter v. Nussle, 122 S.Ct. 983, 990-92 (2002).
Cowart also asserts that the other defendants failed to
supervise Autry, which led to the assault. Cowart has not asserted
facts which support an inference of deliberate indifference on the
part of those defendants. See Smith v. Brenoettsy, 158 F.3d 908,
911-12 (5th Cir. 1998).
Cowart has failed to challenge on appeal the district court’s
conclusions that his claim against defendant Mosley for inadequate
medical care should be dismissed and that the claims against the
defendants in their official capacities were barred by the Eleventh
Amendment. These claims are therefore deemed abandoned. Brinkman
v. Dallas County Deputy Sheriff Abner, 813 F.3d 744, 748 (5th Cir.
1987).
Cowart has not shown that the district court abused its
discretion in dismissing his lawsuit as frivolous. See Siglar v.

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Hightower, 112 F.3d 191, 193 (5th Cir. 1997). Consequently, the
judgment of the district court is
AFFIRMED.

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