UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ____________________

No. 96-50715 No. 97-50187 Summary Calendar ____________________

MICHAEL LEE BARNETT,

Plaintiff-Appellant,

versus

TERRY FOSTER, WARDEN; JOY STOUT, LVN; D. LANCASTER, MD; RICHARD FEARS; WAYNE SCOTT; DAVID KEITH; LANNETTE LINTHICUM; WEATHERBY, LT; PIERCE, CAPT.; HORN, MAJOR; ALVAREZ, WARDEN; RICHARD LOVE, HEALTH ADMIN; JUANITA DORMAN, CLASS SUPV; ANIZAN, CLASS COUNSELOR,

Defendants-Appellees.

Appeal from the United States District Court for the Western District of Texas USDC No. P-95-CA-32

February 26, 1998 Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Michael Lee Barnett, Texas state prisoner No. 680546, appeals

the summary judgment awarded the defendants in his

action. We AFFIRM.

I.

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Barnett filed this action contending primarily that prison

personnel were deliberately indifferent to his serious medical

needs in violation of the Eighth Amendment and retaliated against

him when he asserted his right to medical attention and filed this

action. The district court granted the summary judgment on the

basis that the defendants were entitled to absolute immunity in

their official, and to qualified immunity in their individual,

capacities. The court dismissed various other claims as frivolous.

II.

Of course, we review a summary judgment de novo. See, e.g.,

Amburgey v. Corhart Refractories Corp. Inc.,

(5th

Cir. 1991). Such judgment is proper when, viewing the evidence in

the light most favorable to the non-movant, “‘there is no genuine

issue as to any material fact and ... the moving party is entitled

to a judgment as a matter of law.’”

(quoting FED. R. CIV. P.

56(c)).

A.

Concerning absolute immunity, Barnett does not present any

evidence or explanation regarding why the defendants are not

entitled to such immunity under the Eleventh Amendment.

Accordingly, Barnett has failed to demonstrate any error. See

Kentucky v. Graham,

(1985).

B.

- 2 - Concerning qualified immunity regarding claims defendants were

deliberately indifferent to Barnett’s serious medical needs and

that they retaliated against him for asserting his rights to

adequate medical care and for filing the instant suit, the well-

known test for such immunity is whether (1) the plaintiff has

alleged a violation of a clearly established constitutional right;

and (2) whether the defendants’ conduct was objectively

unreasonable in the light of the clearly established law at the

time of the incident. E.g., Rankin v. Klevenhagen,

(5th Cir. 1993). The summary judgment evidence reveals that, at

most, the defendants were negligent, but not deliberately

indifferent, regarding any serious medical needs. See Varnado v.

Lynaugh,

(5th Cir. 1992). Barnett’s allegations

of retaliation are conclusional and not supported by the evidence.

See Woods v. Smith,

(5th Cir. 1995).

Because Barnett does not demonstrate a constitutional injury,

we need not address whether the district court properly determined

that the defendants were entitled to qualified immunity. See,

e.g., Quives v. Campbell,

(5th Cir. 1991).

Instead, we affirm on the alternate basis that Barnett did not

state a claim of a violation of a clearly established

constitutional right. See Sojurner T. v. Edwards,

, 30

(5th Cir. 1992).

C.

- 3 - Barnett contends that the district court erred by not allowing

him to adequately complete discovery before granting summary

judgment. Our review demonstrates that the court did not abuse its

discretion in making discovery decisions. See, e.g., Williamson v.

U.S. Dept. of Agriculture,

(5th Cir. 1987).

D.

Barnett also contends that the district court erred by not

appointing him counsel. The court did not abuse its discretion,

because the instant case is not factually complex, and Barnett’s

pleadings adequately demonstrated his ability to litigate it. See

Ulmer v. Chancellor,

(5th Cir. 1982).

E.

Barnett does not challenge the denial of injunctive relief.

Because he has failed to challenge this issue on appeal, it is

deemed abandoned. See, e.g., Brinkmann v. Dallas County Deputy

Sheriff Abner,

(5th Cir. 1987).

F.

Likewise, the following issues presented by this appeal are

not adequately argued, and are thus abandoned, id.; see also Al-

Ra’id v. Ingle,

(5th Cir. 1995): that the

defendants have arbitrarily punished certain inmates by changing

custody levels, earning classes and taken away good time credits

thus creating separate classes of inmates; that the district court

failed to liberally construe Barnett’s complaint; and that the

- 4 - Texas Department of Criminal Justice should have been a separate

defendant.

III.

Accordingly, Barnett’s requests for relief in the form of 1)

allowing him to amend his complaint; 2) allowing him to complete

discovery; 3) granting a restraining order and injunctive relief

against the defendants; 4) ordering TDCJ to amend his prison record

and time-earning status; 5) remanding this case to the Eastern

District; and (6) his request for appointment of counsel on appeal

are DENIED.

In the light of our holding, the defendants motions to dismiss

the appeal are DENIED as unnecessary.

Accordingly, the judgment is AFFIRMED.

JUDGMENT AFFIRMED; MOTIONS TO DISMISS DENIED; REQUESTED RELIEF DENIED

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