Pryer v. Walker, et al

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Pryer v. Walker, et al

Doc. 0

Case: 08-60867

Document: 00511179398

Page: 1

Date Filed: 07/20/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 08-60867 S u m m a r y Calendar July 20, 2010 Lyle W. Cayce Clerk

T IM O T H Y G PRYER P la in t if f -A p p e lla n t v. R . WALKER, Doctor/Health Services Administrator at CMCF III; S H A R O N PAIGE, Captain, Central MS Correctional Facility III; D R . JOSEPH BLACKSTON; CORRECTIONAL HEALTH SERVICE, INC.; W E X F O R D HEALTHCARE RESOURCES; COMMISSIONER C H R I S O P H E R EPPS; MARGARET BINGHAM

D e fe n d a n t s -A p p e lle e s

A p p e a l from the United States District Court fo r the Southern District of Mississippi U S D C No. 3:06-CV-588

B e fo r e GARZA, CLEMENT, and OWEN, Circuit Judges. P E R CURIAM:* T im o t h y G. Pryer, Mississippi prisoner # 115393, appeals the district c o u r t's dismissal of his 42 U.S.C. § 1983 complaint as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i) and for failure to state a claim. Because the district court

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

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Case: 08-60867

Document: 00511179398 Page: 2 No. 08-60867

Date Filed: 07/20/2010

d is m is s e d Pryer's claims as both frivolous and for failure to state a claim, review is de novo. See Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005). P r y e r 's claim of deliberate indifference to his medical needs was properly d is m is s e d . Claims of unsuccessful medical treatment are insufficient to give rise t o a claim of deliberate indifference. Varnado v. Lynaugh, 920 F.2d 320, 321 (5 t h Cir. 1991). Moreover, the question whether certain diagnostic studies or fo r m s of treatment are indicated is a "classic example of a matter for medical ju d g m e n t ." Estelle v. Gamble, 429 U.S. 97, 107 (1976). Although a medical d e c is io n not to order certain testing or alter a treatment regime may form the b a s is of a state medical malpractice claim, the decision "does not represent cruel a n d unusual punishment." Id. P r y e r 's claim of sexual abuse was properly dismissed because, even if it is a s s u m e d that a female prison guard rubbed his chest and made comments about h is hair and chest during the performance of his electrocardiogram, Pryer has n o t alleged sufficiently serious assaultive behavior or resulting injury to show a constitutional deprivation. See Boddie v. Schnieder, 105 F.3d 857, 860-61 (2d C ir . 1997). Isolated, unwanted touchings by prison employees are despicable a n d may form the basis of a state tort action, but they "do not involve a harm of fe d e r a l constitutional proportions as defined by the Supreme Court." Id.

P r y e r 's claim of retaliation was properly dismissed because he has not s t a t e d a valid claim for retaliation under § 1983 against any defendant. See J o n e s v. Greninger, 188 F.3d 322, 324)25 (5th Cir. 1999); Woods v. Smith, 60 F .3 d 1161, 1166 (5th Cir. 1995); Ruiz v. United States, 160 F.3d 273, 275 (5th C ir . 1998). T h e district court's judgment is AFFIRMED.

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