Rudy Vallado v. Mrs. Segovia
UNPUBLISHED OPINION FILED. [12-40537 Affirmed ] Judge: JLW , Judge: JWE , Judge: JEG Mandate pull date is 05/10/2013 [12-40537]
Date Filed: 04/19/2013
IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
April 19, 2013
Lyle W. Cayce
AVRIAN L. MENDEZ, Physician Assistant,
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:11-CV-277
Before WIENER, ELROD, and GRAVES, Circuit Judges.
Plaintiff-Appellant Rudy Vallado, Texas prisoner # 1631597, appeals the
summary-judgment dismissal of his 42 U.S.C. § 1983 suit in which he alleged
that Defendant-Appellee Avrian L. Mendez acted with deliberate indifference to
Vallado’s medical needs when treating him for a reducible right inguinal hernia.
The magistrate judge determined that Mendez was entitled to qualified
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
Date Filed: 04/19/2013
On appeal, Vallado contends that Mendez’s prescribed treatments
constituted inadequate medical care because he did not issue Vallado a medical
Vallado does not establish that Mendez (1) was aware of facts
demonstrating a substantial risk of serious harm to Vallado and (2) disregarded
the risk by failing to take reasonable measures to treat Vallado. See Farmer v.
Brennan, 511 U.S. 825, 847 (1994). The record demonstrates that Vallado was
repeatedly monitored, evaluated, and treated for his hernia. Vallado’s assertion
that he received inadequate medical care is essentially a disagreement with the
medical treatment he received or a claim that Mendez was negligent. Neither
such a disagreement nor a negligence claim rises to the level of a constitutional
violation. See Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991). Vallado
has failed to show “conduct that would clearly evince a wanton disregard for any
serious medical needs.” See Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir.
1985). Additionally, to the extent Vallado alleges that Mendez violated prison
policies, these allegations, without more, do not establish a constitutional
violation. See Samford v. Dretke, 562 F.3d 674, 681 (5th Cir. 2009).
Finally, Vallado’s appeal fails to challenge the dismissal of his claims
against Mendez, Assistant Warden Davis (Davis), and Grievance Director Mrs.
Segovia (Segovia) in their official capacities or the dismissal of his claims against
Davis and Segovia in their individual capacities. By failing to identify any error
regarding the dismissal of these claims, it is as though Vallado had not appealed
those issues at all. See Brinkmann v. Dallas County Deputy Sheriff Abner, 813
F.2d 744, 748 (5th Cir. 1987). Vallado has thus abandoned on appeal any
contentions that the dismissal of these claims was reversible error.
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