IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-40591 Summary Calendar

PERCY W. RASPBERRY,

Plaintiff-Appellant,

versus

GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION; ROBERT HERRERA, Assistant Warden, Michael Unit; EDWIN KEITH ATCHISON, Lieutenant, Michael Unit; JAMES D. TIPPEN, Correctional Officer III, Michael Unit; WILLIAM DANIELS, Captain/Major, Texas Department of Criminal Justice - Institutional Division; WILLIAM R. WATTS, Captain, Michael Unit; VERNON ALLEN; LEON GUINN; CATHERINE GAIL MAYES,

Defendants-Appellees.

- - - - - - - - - - Appeals from the United States District Court for the Eastern District of Texas USDC No. 6:99-CV-185 - - - - - - - - - - November 29, 2001

Before DAVIS, BENAVIDES and STEWART, Circuit Judges.

PER CURIAM:*

Percy Raspberry, Texas prisoner # 423151, appeals the

district court’s dismissal of his

complaint.

Raspberry alleged that he was a victim of excessive use of force

and related constitutional violations that arose out of a “chow

hall” incident and an ensuing prison riot. Several defendants,

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 00-40591 -2-

and all claims except for the excessive-force claim, were

dismissed pursuant to

(e)(2)(B)(i)&(ii). The

magistrate judge conducted a

(b)(1)(B) trial on

the merits for Raspberry’s excessive-force. The excessive-force

claim was dismissed with prejudice by the district court.

Raspberry argues that the magistrate judge erred when she

conducted a bench trial despite a timely jury demand. He also

asserts that he did not consent to the magistrate judge

conducting the proceedings. Raspberry did not serve the

defendants with his jury demand as required by Fed. R. Civ. P.

38(b). Consequently, he waived his right to a jury trial. See

Fed. R. Civ. P. 38(d); See Houston N. Hosp. Prop. v. Telco

Leasing, Inc.,

(5th Cir. 1982). Contrary to

Raspberry’s assertion, the magistrate judge was not required to

obtain Raspberry’s consent to conduct a

(b)(1)(B)

hearing. See Sockwell v. Phelps,

(5th Cir.

1990).

Raspberry argues that the district court erred when it

dismissed the claim that defendant Gary Johnson should be held

liable for injuries caused by prison employees because Johnson

failed to supervise employees and failed to respond to and

investigate Raspberry’s complaints of excessive force. Recovery

pursuant to a respondeat-superior or vicarious-liability theory

is not available under § 1983. Baskin v. Parker,

(5th Cir. 1979). Moreover, the alleged failure to

investigate complaints and to take action in response to them No. 00-40591 -3-

does not provide a basis for a civil rights action. See Oliver

v. Collins,

(5th Cir. 1990).

Raspberry contends that the district court erred when it

denied his excessive-force claim because it should have concluded

that there existed a genuine issue of material fact. Raspberry

is confused about the procedural posture of his case. It was not

dismissed on a summary-judgment motion. Rather, Raspberry’s

excessive-force claim proceeded to a trial on the merits. He has

failed to address whether the district court’s findings of fact

were clearly erroneous, nor has he identified a legal error

committed by the district court during the bench trial. See

Canal Barge Co., Inc. v. Torco Oil Co.,

(5th

Cir. 2000).

Raspberry contends that he was denied medical treatment for

his injured hand and bruised head. He failed to allege either a

serious medical condition or deliberate indifference to a serious

medical condition. Domino v. Texas Dep’t of Criminal Justice,

(5th Cir. 2001). He concedes that the injuries

healed on their own, he did not suffer any broken bones in his

hand, and he was examined by medical personnel for his injuries.

Raspberry argues that he was subjected to retaliation and

racial epithets during an interrogation. His retaliation

argument on appeal is really a part of his excessive-force claim.

Standing alone, his allegations of racial epithets fails to state

an equal-protection claim. See Williams v. Bramer,

(5th Cir. 1999)(holding that mere verbal harassment, No. 00-40591 -4-

including use of racially derogatory terms, inadequate to state

equal-protection claim).

Raspberry asserts that the prison’s Internal Affairs

Division failed to investigate the use of force incident as

required by state law and prison regulations. His assertion that

the Internal Affairs Division failed to follow established prison

policies is inadequate to state a cause of action. See Edwards

v. Johnson,

(5th Cir. 2000). Likewise, his

allegations that the Internal Affairs Division failed to conduct

an investigation is insufficient to state a

claim. See Oliver,

.

Raspberry has failed to demonstrate that the district court

erred when it denied his excessive-force claim on the merits.

The district court properly dismissed Raspberry’s remaining

constitutional claims as either frivolous or for failure to state

a claim pursuant to

(e)(2)(B)(i)&(ii).

Accordingly, the district court’s judgment is AFFIRMED.