     Case: 15-51243      Document: 00514067674         Page: 1    Date Filed: 07/11/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                    No. 15-51243                                   FILED
                                  Summary Calendar                             July 11, 2017
                                                                              Lyle W. Cayce
                                                                                   Clerk
DAVID RODRIGUEZ,

                                                 Plaintiff-Appellant

v.

JONATHAN GARCIA, Badge Number 1777, Bexar County Sheriff; KEISHA
LNU, Nurses Aid, University Health System; JAMES LNU, Nurses Aid,
University Health System; CHERYL ANN SUMMERVILLE; UNIVERSITY
HEALTH SYSTEM; BEXAR COUNTY ADULT DETENTION CENTER,

                                                 Defendants-Appellees


                  Appeals from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:14-CV-861


Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *
       David Rodriguez, Texas prisoner # 2098768, moves for the appointment
of counsel and appeals the dismissal of his 42 U.S.C. § 1983 action against a
nurse (Cheryl Ann Summerville), a deputy (Jonathan Garcia), Bexar County,
Bexar County Hospital District d/b/a University Health System (hereinafter


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                 No. 15-51243

University Health System), and two incompletely identified nurse’s aides
(Keisha and James). Rodriguez’s claims stemmed from incidents that occurred
when he was a pretrial detainee, specifically (1) during his hospitalization on
a controlled access unit for the treatment of injuries sustained in a collision
after a high-speed chase from the police and (2) during his confinement in the
jail infirmary following his release from the hospital.
      In his brief, Rodriguez fails to challenge the district court’s rejection of
his claims against one nurse’s aide (Keisha), his state tort claims, and his
municipal liability claims against Bexar County and the University Health
System. He has thus abandoned any challenge to the district court’s rejection
of those claims. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
      Regarding his remaining claims, Rodriguez first argues that, in granting
summary judgment dismissal of his excessive force claims against Garcia, the
district court improperly decided disputed factual issues.          Additionally,
Rodriguez argues that the injuries he received as a result of his altercation
with Garcia were severe enough to raise a genuine dispute of material fact
regarding his excessive force claim.
      We review a district court’s grant of summary judgment de novo,
applying the same standard as the district court and viewing the facts in the
light most favorable to the nonmoving party. See Rogers v. Bromac Title Servs.,
L.L.C., 755 F.3d 347, 350 (5th Cir. 2014). Summary judgment is proper when
“there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” FED. R. CIV. P. 56(a).
      While there may be some disputed facts, as Rodriguez points out, there
was no genuine dispute of a material fact. See Savant v. APM Terminals, 776
F.3d 285, 288 (5th Cir. 2014). The undisputed facts show that Rodriguez’s leg
was initially injured in the collision, he underwent surgery, he later sustained



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                                 No. 15-51243

a plate failure of the hardware placed in his injured leg during surgery, and he
required further surgery. Even if the plate failure occurred after Rodriguez’s
altercation with Garcia, the undisputed facts show that, given the totality of
the circumstances confronting Garcia, in particular Rodriguez’s mental status,
his acting without authorization in the hospital, his continued struggle with
Garcia and resistance during the altercation, and Garcia’s need to prevent
Rodriguez from taking control of his weapon, the district court did not err in
concluding that Garcia’s conduct was objectively reasonable and did not violate
Rodriguez’s constitutional rights. See Kingsley v. Hendrickson, 135 S. Ct. 2466,
2473 (2015); Ramirez v. Knoulton, 542 F.3d 124, 128-29 (5th Cir. 2008).
Because there was no constitutional violation, the district court did not err in
finding that Garcia was entitled to summary judgment on the basis of qualified
immunity. Tolan v. Cotton, 134 S. Ct. 1861, 1865-66 (2014); Savant, 776 F.3d
at 288.
      Next, we discern no error in the district court’s grant of summary
judgment to Garcia and Summerville as to Rodriguez’s claim that he was
forced to take antipsychotic medication. See Savant, 776 F.3d at 288. The
undisputed facts, including Rodriguez’s admission that he was suffering from
paranoia, establish that he experienced an active psychiatric disorder during
his hospitalization and that his physician concluded that medication was
indicated. In light of the foregoing, even if it is assumed that Rodriguez was
forced to take antipsychotic medication during his hospitalization, there was
no constitutional violation. See Washington v. Harper, 494 U.S. 210, 227
(1990).   To the extent Rodriguez claims that his physician erroneously
determined that antipsychotic medication was indicated, unsuccessful medical
treatment, negligent acts, medical malpractice, and a prisoner’s disagreement




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                                  No. 15-51243

with his medical treatment are insufficient to establish a constitutional
violation. See Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006).
      Rodriguez’s challenge to the district court’s rejection of his claim that his
constitutional rights were violated when he was placed in restraints for over
30 hours is likewise unavailing.      The undisputed facts show that, while
Rodriguez was hospitalized, he was placed in restraints by health care staff
based on his psychiatric status. Any disagreement with whether restraints
were medically indicated does not establish a constitutional violation. See
Gobert, 463 F.3d at 346; see also Kingsley, 135 S. Ct. at 2473. Accordingly, the
district court did not err in rejecting this claim. See Savant, 776 F.3d at 288;
Rogers v. Boatright, 709 F.3d 403, 407 (5th Cir. 2013).
      Rodriguez lastly contends that the district court erred in dismissing his
claim that the defendants acted with deliberate indifference to his medical
needs by ignoring his reports of injuries and pain for 21 days after the
September 25, 2012, altercation. Regarding Summerville, the district court
did not err in granting summary judgment because Rodriguez does not dispute
that Summerville had no involvement in his care after September 25th. See
Savant, 776 F.3d at 288. As to Garcia, the district court did not err because
Rodriguez does not argue that Garcia is a health care provider or that Garcia
provided his medical or nursing care when he was hospitalized through
September 29, 2012, or after his transfer to the jail infirmary, where he
remained confined until an orthopedist diagnosed the hardware failure in
October 2012. See id.
      In light of the foregoing, the judgment of the district court is AFFIRMED.
Because Rodriguez has not shown “exceptional circumstances,” Ulmer v.
Chancellor, 691 F.2d 209, 212 (5th Cir. 1982), his motion seeking the
appointment of counsel is DENIED.



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