IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-40537 Summary Calendar

ROBERT GRUNDY,

Plaintiff-Appellant,

versus

RONALD SCOTT; MARY CHOATE, Sheriff; UNKNOWN CAMPBELL, Lieutenant; UNKNOWN MORGAN, Officer; UNKNOWN NEIGHBOR, Sergeant; UNKNOWN MORTON, Sergeant; UNKNOWN YOUNG, Sergeant; UNKNOWN PRINCE, Sergeant; JEREMY JOHNSON, Officer; TODD GONODIN, Officer; UNKNOWN WILLIS, Colonel; BURGHT T. BRANDEN, Colonel; UNKNOWN SWIFT, Colonel; UNKNOWN BROWN, Colonel; UNKNOWN WILLIAMS, Colonel; UNKNOWN JOHNSON, Colonel; UNKNOWN NEWHEART, Officer; UNKNOWN REEVES, Officer; JOHN UNKNOWN DOE; JIMMY UNKNOWN, Officer; JOHN UNKNOWN DOE, Sergeant,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 5:96-CV-227 -------------------- February 10, 2000

Before JONES, DUHÉ, and STEWART, Circuit Judges.

PER CURIAM:1

Robert Grundy, TDCJ #99054, appeals the dismissal of his pro

se

action for failure to state a claim against

Sheriff Mary Choate, Warden Ron Scott, Officer Campbell, and

Officer Morgan, and failure to prosecute his claim against the

remaining defendants. See Fed. R. Civ. P. 12(b), 41(b). Grundy

1 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. argues that the district court improperly dismissed Sheriff Choate,

Warden Scott, Officer Campbell, and Officer Morgan because he

stated a claim against them. Grundy contends that Sheriff Choate

and Warden Scott should be held vicariously liable for the actions

of officers under their supervision. Grundy contends that Officer

Campbell should be liable for the loss of Grundy’s property because

Officer Campbell failed to provide a lock to secure Grundy’s

possessions. Grundy contends that Officer Morgan should be liable

because Morgan instigated the first assault and Morgan actually

beat him in a second assault.

Grundy has failed to state a claim against Sheriff Choate and

Warden Scott because supervisory officers cannot be held liable

under § 1983 for the actions of subordinates on a theory of

vicarious liability. See Alton v. Texas A & M Univ.,

(5th Cir. 1999). Grundy has failed to state a claim against

Officer Campbell because an adequate state post-deprivation remedy

exists and the deprivation of property caused by Officer Campbell

did not infringe Grundy’s constitutional rights. See Murphy v.

Collins,

(5th Cir. 1994). Grundy has failed to

state a claim in his original petition against Officer Morgan

because he did not allege any physical injury caused by Officer

Morgan. See Gomez v. Chandler,

(5th Cir.

1999)(physical injury is an indispensable element of an excessive

force claim). Grundy may not raise, for the first time on appeal,

the claim that Officer Morgan actually assaulted him. See

Leverette v. Louisville Ladder Co.,

(5th Cir.),

petition for cert. filed,

(U.S. Nov. 24, 1999)(No. 99-884). Grundy cannot prove any set of facts in support of his

claim which would entitle him to relief, and his claims against

Choate, Scott, Campbell, and Morgan were properly dismissed under

Rule 12(b). See Hall v. Thomas,

(5th Cir. 1999).

Grundy has waived the issue of whether the district court

properly dismissed his remaining claims for failure to prosecute

because he did not brief the issue until his reply brief. See

Yohey v. Collins,

(5th Cir. 1993)(issues not

briefed are waived); United States v. Prince,

(5th Cir. 1989)(issues raised for the first time in a reply brief

will not be considered).

Accordingly, judgment of the district court is AFFIRMED.