Michael McGiffin v. Joseph M. Curry, et al

Filing

UNPUBLISHED OPINION FILED. [09-20800 Affirmed] Judge: EGJ , Judge: EMG , Judge: CES. Mandate pull date is 12/08/2010 [09-20800]

Michael McGiffin v. Joseph: M. Curry, et alDocument: 00511295981 Case 09-20800

Page: 1 Date Filed: 11/17/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-20800 S u m m a r y Calendar November 17, 2010 Lyle W. Cayce Clerk

M I C H A E L ARTHUR MCGIFFIN, P la in t if f -A p p e lla n t v. J O S E P H M. CURRY, RA, In His Individual and Official Capacities; JUSTIN G R E E N , MD, In His Individual and Official Capacities, 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 Texas U S D C No. 4:07-CV-1179

B e fo r e JOLLY, GARZA and STEWART, Circuit Judges. P E R CURIAM:* M ic h a e l Arthur McGiffin, Texas prisoner # 1320384, appeals the district c o u r t 's grant of summary judgment in favor of Joseph M. Curry, Physician's A s s is t a n t , and Dr. Justin Green, holding them protected by qualified immunity fr o m his civil rights suit seeking monetary damages. McGiffin alleged that the d e fe n d a n t s were deliberately indifferent to his serious medical needs in that

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-20800 Document: 00511295981 Page: 2 Date Filed: 11/17/2010 No. 09-20800 t h e y did not provide adequate treatment for his urological problem and they did n o t provide him catheters or a dilation tool. A lt h o u g h McGiffin lists as his first issue on appeal that the district court a b u s e d its discretion in denying his motions for the appointment of counsel, he h a s provided no argument on the issue. When an appellant fails to identify any e r r o r in the district court's analysis, it is the same as if the appellant had not a p p e a le d that issue. Brinkmann v. Dallas County Sheriff Abner, 813 F.2d 744, 7 4 8 (5th Cir. 1987). Although pro se briefs are afforded liberal construction, H a in e s v. Kerner, 404 U.S. 519, 520 (1972), arguments must be briefed in order t o be preserved. Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). McGiffin h a s abandoned any challenge to the district court's denial of his motions for the a p p o in tm e n t of counsel by failing to brief the issue. See id. M c G iffin contends that the district court abused its discretion in denying h is request to appoint Chester W. Ingram as a medical expert in the case. A d is t r ic t court has the discretion to appoint an expert witness. Fugitt v. Jones, 5 4 9 F.2d 1001, 1006 (5th Cir. 1977); FED. R. EVID. 706. McGiffin has not shown t h a t the district court abused its discretion in denying his motion to appoint I n g r a m as an expert because he has not made any showing that Ingram's t e s t im o n y would have aided the court. See Hannah v. United States, 523 F.3d 5 9 7 , 600 (5th Cir. 2008). McGiffin challenges the district court's grant of summary judgment in fa v o r of Curry and Dr. Green and argues that they were not entitled to qualified im m u n it y . McGiffin argues that Dr. Green disregarded his e-mails and would n o t treat him when McGiffin asked Dr. Green to dilate his urethra. McGiffin a r g u e s that Curry refused to provide urethral dilation treatment or the means fo r him to self-dilate in violation of his Eighth Amendment rights. We review the grant of a motion for summary judgment de novo, applying t h e same standards as the district court. Hill v. Carroll County, Miss., 587 F.3d 2 3 0 , 233 (5th Cir. 2009). Summary judgment should be granted where the 2

Case: 09-20800 Document: 00511295981 Page: 3 Date Filed: 11/17/2010 No. 09-20800 r e c o r d shows "that there is no genuine issue as to any material fact and that the m o v a n t is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c)(2). This c o u r t views the disputed facts and inferences in the light most favorable to the n o n -m o v in g party. Hill, 587 F.3d at 233. "Qualified immunity protects government officials `from liability for civil d a m a g e s insofar as their conduct does not violate clearly established statutory o r constitutional rights of which a reasonable person would have known.'" Lytle v . Bexar County, Tex., 560 F.3d 404, 409 (5th Cir. 2009) (quoting Harlow v. F itz g e r a ld , 457 U.S. 800, 818 (1982)), cert. denied, 130 S. Ct. 1896 (2010). Whether a government official is entitled to qualified immunity for an alleged c o n s t it u t io n a l violation is determined by the two-step analysis set forth in S a u c ie r v. Katz, 533 U.S. 194 (2001), overruled in part by Pearson v. Callahan, 1 2 9 S. Ct. 808 (2009). Lytle, 560 F.3d at 409. The threshold constitutional v io la t io n question is "whether, taking the facts in the light most favorable to the p la in t iff, the officer's alleged conduct violated a constitutional right." Id. at 410 (c it in g Saucier, 533 U.S. at 201). "Deliberate indifference is an extremely high standard to meet." Domino v . Texas. Dep't of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001). The p l a i n t if f must establish that the defendants "refused to treat him, ignored his c o m p la in t s , intentionally treated him incorrectly, or engaged in any similar c o n d u c t that would clearly evince a wanton disregard for any serious medical n e e d s ." Id. (internal quotation marks and citation omitted). Thus, neither an in c o r r e c t diagnosis nor the failure to alleviate a significant risk that an official s h o u l d have perceived but did not will be sufficient to establish deliberate in d iffe r e n c e . See id. Similarly, unsuccessful treatment, medical malpractice, a n d acts of negligence do not constitute deliberate indifference; nor does a p r is o n e r 's disagreement with his medical treatment, absent exceptional c ir c u m s t a n c e s . See Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006). "Medical records of sick calls, examinations, diagnoses, and medications may 3

Case: 09-20800 Document: 00511295981 Page: 4 Date Filed: 11/17/2010 No. 09-20800 r e b u t an inmate's allegations of deliberate indifference." M c F a r la n d , 41 F.3d 232, 235 (5th Cir. 1995). M c G iffin has not shown that the district court erred in granting summary ju d g m e n t for Curry and Dr. Green on his claims of deliberate indifference to his s e r io u s medical needs. As the district court reasoned, McGiffin's arguments a m o u n t to mere disagreement with the "implicit determinations . . . that [M c G iffin ] did not necessarily need urethral dilation or did not need it im m e d ia t e ly ." Such disagreement does not constitute deliberate indifference. See Gobert, 463 F.3d at 346. Although there was a lengthy delay before McGiffin r e c e iv e d catheters, he has not shown that a fact issue exists on the issues w h e t h e r the delay was due to the deliberate indifference of Curry or Dr. Green o r that the delay resulted in substantial harm. See Mendoza v. Lynaugh, 989 F .2 d 191, 195 (5th Cir. 1993). At most, the delays or inadequate treatment c o n s t it u t e negligence, which does not rise to the level of deliberate indifference. See Stewart v. Murphy, 174 F.3d 530, 534 (5th Cir.1999). McGiffin's allegations t h a t Curry made unprofessional remarks to him during treatment are not a c t io n a b le . See Calhoun v. Hargrove, 312 F.3d 730, 734 (5th Cir. 2002) (holding t h a t verbal abuse by prison guard does not amount to a constitutional violation). M c G iffin has not shown that the conduct of Curry and Dr. Green violated a constitutional right. Therefore, he fails to show that the defendants were not e n tit le d to qualified immunity. See Lytle, 560 F.3d at 410. AFFIRMED. Banuelos v.

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