IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 96-40477 (Summary Calendar)

TRAVIS ODEN,

Plaintiff-Appellant,

versus

TEXAS, CAMERON COUNTY; ALEX PEREZ, in his Individual and Official Capacities; JOE ELIZARDI, in his Individual and Official Capacities; and NURSE CASTILLO,

Defendants-Appellees.

Appeal from the United States District Court For the Southern District of Texas, Brownsville Division (B-95-CV-140)

December 23, 1996

Before HIGGINBOTHAM, DAVIS and WIENER, Circuit Judges.

PER CURIAM:*

This is an appeal from the district court’s dismissal of

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4.

1 Plaintiff-Appellant Travis Oden’s complaint against Defendants-

Appellees Cameron County, Alex Perez, and Joe Elizardi under Fed.

R. Civ. P. 12(b)(6) for failure to state a claim. “Nurse” Castillo

was never served and therefore is not a defendant. We affirm.

I

FACTS AND PROCEEDINGS

On Wednesday, October 20, 1993, while Oden was a pre-trial

detainee at the Cameron County Detention Center, he was issued a

pair of plastic sandals and told to clean the shower stalls.

During the course of performing that task, Oden slipped and fell

hard on his hand, dislocating his arm from the socket. Oden seeks

to recover damages from Cameron County under the Texas Tort Claims

Act2 for the County’s alleged negligence in supplying him plastic

sandals to wear while cleaning the showers. Oden also seeks to

recover damages from the County, Perez, Elizardi, and nurse

Castillo under

, based on their deliberate

indifference to his medical needs, in violation of his Eighth

Amendment right to be free from cruel and unusual punishment.

Oden’s complaint and appellate brief painstakingly recount the

facts underlying his § 1983 claim. A distillation of those facts

reveals the following allegations of misconduct or indifference:

(1) After Nurse Castillo took x-rays of Oden’s arm, administered

multiple painkiller shots, and allowed him to visit a hospital for

2 Tex. Civ. Prac. & Rem. Code § 101.001, et seq. (West 1986 & Supp. 1996).

2 treatment, she refused to give him a hot water bottle; (2) when

Oden contracted a thumb infection, he lost part of his thumbnail

because he was forced to treat himself by draining pus before the

nurse was willing to take his complaints seriously and assist him;

and (3) six days before Oden’s release, Chief Elizardi promised his

father that Oden would see another doctor and receive a hot water

bottle but failed to fulfill either of those promises before Oden’s

release.

Oden filed his complaint in Texas state court on August 1,

1996, and the defendants removed to federal district court. The

defendants immediately requested a stay of discovery pending the

court’s determination of the individual defendants’ qualified

immunity defense. On December 15, the magistrate judge filed a

Report and Recommendation that recommended the dismissal of Oden’s

claims against Perez and Elizardi, identified the Texas Tort Claims

Act negligence claim against the County as the only remaining

claim, and ordered the parties to file pleadings addressing the

issue of “notice” under the Texas Tort Claims Act.

On April 3, 1996, pursuant to the defendants’ motions for

judgment on the pleadings, the district court issued two orders,

one adopting the magistrate’s Report and Recommendation and the

other dismissing all claims against the defendants with prejudice.

II

ANALYSIS

A. Standard of Review

3 We review a Rule 12(b)(6) dismissal de novo.3 We must accept

all well-pleaded facts as true, and we view them in the light most

favorable to the plaintiff.4 We may not look beyond the pleadings.5

A dismissal will not be affirmed if the allegations support relief

on any possible theory.6

B. The Negligence Claim

The Texas Tort Claims Act provides a negligence cause of

action for damages against state governmental entities. The Act

requires a claimant to provide a governmental unit with formal,

written notice of a claim against it within six months of the

incident giving rise to the claim.7 The formal notice requirement

does not apply, however, if the governmental unit has actual notice

of the claim.8 The Texas Supreme Court defines “actual notice” as

knowledge of (1) the injury, (2) the governmental unit’s alleged

fault producing or contributing to the injury, and (3) the

identities of the parties involved.9

3 Cinel v. Connick,

(5th Cir. 1994), cert. denied,

,

; McCartney v. First City Bank,

(5th Cir. 1992). 4

5

6

7 Cathey v. Booth,

(Tex. 1995). 8

9

4 Turning to the pleadings, Oden asserts a negligence claim

against the County predicated on the County’s furnishing him

plastic sandals for use during his cleaning of the shower stalls.

Oden did not provide the County with formal written notice of his

claim until he served it with his petition on August 3, 1995,

nearly two years after the incident. Oden nevertheless insists

that, as the County was aware of Oden’s injuries, it had actual

notice of the claim. Oden’s complaint does not allege, however,

that the County was ever aware of its alleged fault in causing

Oden’s slip on the shower room floor. Thus, Oden failed to plead

facts sufficient to show either formal or actual notice as required

by the Texas Tort Claims Act.

C. The § 1983 Claim

To determine whether the individual defendants are entitled to

qualified immunity, we first must analyze whether Oden has asserted

a violation of a constitutional right at all.10 The allegations of

misconduct, taken alone, do not even begin to approach the level of

“deliberate indifference,” required to establish a constitutional

violation. When we review all the instances, chronicled by Oden in

his complaint, in which the nurse and the detention center staff

attended to Oden and granted his requests for medical attention, we

are inclined to commend the defendants for their patience and

attentiveness on Oden’s behalf rather than conclude that Oden’s

10 Siegert v. Gilley,

,

,

(1991).

5 complaint states a cause of action under § 1983 upon which relief

could be granted —— which it absolutely does not.

AFFIRMED.

6