     Case: 14-11259      Document: 00513331921         Page: 1    Date Filed: 01/06/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                    No. 14-11259                           January 6, 2016
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
BILLY R. SANFORD,

                                                 Plaintiff-Appellant

v.

TARRANT COUNTY SHERIFF’S DEPARTMENT; OFFICER CLARK; JOHN
PETER SMITH HOSPITAL,

                                                 Defendants-Appellees


                  Appeals from the United States District Court
                       for the Northern District of Texas
                             USDC No. 4:14-CV-822


Before DAVIS, JONES, and GRAVES, Circuit Judges.
PER CURIAM: *
       Billy R. Sanford, Texas prisoner # 0492400, filed a civil rights complaint,
pursuant to 42 U.S.C. § 1983, alleging that the defendants were deliberately
indifferent to his serious medical needs. He further alleged that Officer Clark
violated his constitutional rights by using excessive force. Sanford timely




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 14-11259    Document: 00513331921     Page: 2    Date Filed: 01/06/2016


                                 No. 14-11259

appeals the district court’s dismissal of his complaint, pursuant to 28 U.S.C.
§ 1915A(b)(1), for failure to state a claim upon which relief may be granted.
      A district court shall dismiss a prisoner’s in forma pauperis civil rights
complaint if the court determines that the action fails to state a claim upon
which relief may be granted. § 1915A(b)(1). “A dismissal of a civil rights
complaint for failure to state a claim is reviewed de novo, using the same
standard applicable to dismissals under Federal Rule of Civil Procedure
12(b)(6).” Rogers v. Boatright, 709 F.3d 403, 407 (5th Cir. 2013). A complaint
fails to state a claim upon which relief can be granted when it does not contain
“sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal
quotation marks and citation omitted).
      Before this court, Sanford does not brief any claim against the Tarrant
County Sheriff’s Department.      He does not challenge the district court’s
determination that the Tarrant County Sheriff’s Department is not an entity
capable of being sued. Even if we liberally construed Sanford’s complaint to
allege a claim against Tarrant County, Texas, Sanford does not challenge the
district court’s determination that a governmental entity cannot be held
vicariously liable for the actions of its employees under a theory of respondeat
superior.    Further, Sanford does not challenge the district court’s
determination that he failed to allege that Tarrant County had executed a
custom or policy that deprived Sanford of a constitutional right. Sanford has
thus abandoned any challenge to the district court’s decision dismissing his
action against the Tarrant County Sheriff’s Department for failure to state a
claim upon which relief may be granted. See Brinkmann v. Dallas County
Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).




                                       2
    Case: 14-11259         Document: 00513331921         Page: 3   Date Filed: 01/06/2016


                                       No. 14-11259

      A review of Sanford’s medical records does not demonstrate deliberate
indifference on the part of John Peter Smith Hospital. As noted at the Spears 1
hearing, there is no evidence in the medical records that Sanford suffered a
concussion. At most, Sanford’s complaint that he received only ibuprofen for
pain amounts to a mere disagreement with medical treatment, which does not
constitute a constitutional violation. See Estelle v. Gamble, 429 U.S. 97, 107
(1976); see also Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir. 1997). Sanford
has failed to show that any employee of John Peter Smith Hospital ignored his
complaints, refused treatment, “or engaged in any similar 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). Accordingly, the district court
did not err in dismissing his action for failure to state a claim upon which relief
may be granted. See Iqbal, 556 U.S. at 678.
      As to Sanford’s excessive force claim, there is no indication that Officer
Clark maliciously and sadistically used force to cause Sanford harm. See
Hudson v. McMillian, 503 U.S. 1, 7 (1992). Sanford’s claim does not show that,
under the circumstances, the officer used more force than was reasonably
necessary to secure Sanford and maintain order. See id. at 6-7. Further, the
record belies Sanford’s assertion that the defendants’ attorney admitted at the
Spears hearing to tampering with evidence that would have supported
Sanford’s excessive force claim.
      The district court did not err in dismissing Sanford’s § 1983 complaint
for failure to state a claim upon which relief may be granted. See § 1915A(b)(1);
Iqbal, 556 U.S. at 678.          Additionally, the district court did not abuse its
discretion in denying Sanford’s motion for appointment of counsel. See Cupit




      1   Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).


                                               3
    Case: 14-11259   Document: 00513331921     Page: 4   Date Filed: 01/06/2016


                                No. 14-11259

v. Johnson, 835 F.2d 82, 86 (5th Cir. 1987). Sanford’s motions for appointment
of counsel on appeal and entry of default judgment are denied.
     AFFIRMED; ALL OUTSTANDING MOTIONS DENIED.




                                      4
