     Case: 11-10107     Document: 00511615903         Page: 1     Date Filed: 09/28/2011




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

                                                                            FILED
                                                                        September 28, 2011
                                     No. 11-10107
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

CHARLES STOCKWELL,

                                                  Petitioner-Appellant

v.

D.O. GORDON KANAN; DANNY MARRERO; SANDRA BUTLER; PAUL
CELESTIN; REBECCA TAMEZ,

                                                  Respondents-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:10-CV-31


Before WIENER, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Petitioner-Appellant Charles Stockwell, federal prisoner # 35514-177,
appeals the dismissal of his claims pursuant to Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Stockwell contends
that the district court erred by dismissing his medical care claims against Dr.
Gordon Kanan and mid-level practitioner Danny Marrero, whom he alleges
provided inadequate care, and against Associate Warden Sandra Butler, health


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-10107

service administrator Paul Celestin, and Warden Rebecca Tamez, whom he
alleges failed to take action when they became aware of the inadequate care that
was provided. He asserts that the district court erred in basing its dismissal of
the claims against Butler, Celestin, and Tamez on the dismissal of the claims
against Dr. Kanan and Marrero, as those three officers were obliged to take
action to correct substandard care even if that care did not itself constitute
deliberate indifference to his serious medical needs.
      Claims against the United States pursuant to the Federal Tort Claims Act
remain pending in the district court; however, final judgment was entered as to
the claims raised in this appeal, pursuant to Federal Rule of Civil Procedure
54(b). The entry of final judgment was not an abuse of discretion, and we have
jurisdiction over the current appeal. See Ackerman v. FDIC, 973 F.2d 1221, 1224
(5th Cir. 1992).
      Claims against all defendants, including the United States, for operation
of a so-called “Hug a Thug” program and for the intentional infliction of
emotional distress were dismissed by the district court. As Stockwell does not
appeal the dismissal of those claims, he has abandoned them on appeal. See In
re Municipal Bond Reporting Antitrust Litigation, 672 F.2d 436, 439 n.6 (5th Cir.
1982).
      The district court dismissed Stockwell’s complaint (1) for failure to state
a claim under the provisions of § 1915(e)(2)(B)(ii) and § 1915A, and (2) as
frivolous pursuant to § 1915(e)(2)(B)(i). We review a dismissal for failure to state
a claim de novo, applying the same standard used to review a dismissal under
Federal Rule of Civil Procedure 12(b)(6). Bradley v. Puckett, 157 F.3d 1022, 1025
(5th Cir. 1998); Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998). When, as
here, a district court dismisses a complaint as both frivolous, § 1915(e)(2)(B)(i),
and for failure to state a claim, § 1915(e)(2)(B)(ii), we review the decision de
novo. See Samford v. Dretke, 562 F.3d 674, 678 (5th Cir. 2009).



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      In reviewing a dismissal for failure to state a claim, we accept as true all
well-pleaded facts and views any such facts in the light most favorable to the
plaintiff. Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008).
“Factual allegations must be enough to raise a right to relief above the
speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “To
survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). This
standard is met “when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. It follows that “where the well-pleaded facts do not permit the
court to infer more than the mere possibility of misconduct, the complaint has
alleged--but it has not ‘show[n]’--‘that the pleader is entitled to relief.’” Iqbal,
129 S. Ct. at 1950 (quoting FED. R. CIV. P. 8(a)(2)); accord Gonzalez v. Kay, 577
F.3d 600, 603 (5th Cir. 2009).
      Generally, when ruling on a Rule 12(b)(6) motion, the district court may
not look beyond the pleadings. Cinel v. Connick, 15 F.3d 1338, 1341 (5th Cir.
1994). The court may, however, refer to matters of public record, as well as to
documents attached to the complaint. Id. at 1343 n.6 (public records); Lovelace
v. Software Spectrum, Inc., 78 F.3d 1015, 1017 (5th Cir. 1996) (documents
attached to complaint). In case of a conflict between the allegations in a
complaint and the exhibits attached to the complaint, the exhibits control.
United States ex rel. Riley v. St. Luke’s Episcopal Hosp., 355 F.3d 370, 377 (5th
Cir. 2004); Simmons v. Peavy-Welsh Lumber Co., 113 F.2d 812, 813 (5th Cir.
1940).
      Prison officials violate the constitutional prohibition against cruel and
unusual punishment when they demonstrate deliberate indifference to a
prisoner’s serious medical needs, constituting an unnecessary and wanton
infliction of pain. See Wilson v. Seiter, 501 U.S. 294, 297 (1991). The Supreme

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Court has adopted “subjective recklessness as used in the criminal law” as the
appropriate test for deliberate indifference. Farmer v. Brennan, 511 U.S. 825,
839-41 (1994). A prison official acts with deliberate indifference when he “knows
of and disregards an excessive risk to inmate health or safety; the official must
both be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw the inference.”
Farmer, 511 U.S. at 837; see Reeves v. Collins, 27 F.3d 174, 176-77 (5th Cir.
1994) (applying Farmer to a claim for denial of medical care). “[T]he facts
underlying a claim of deliberate indifference must clearly evince the medical
need in question and the alleged official dereliction.” Johnson v. Treen, 759 F.2d
1236, 1238 (5th Cir. 1985) (internal quotation, citation, and emphasis omitted).
      Viewing the facts most favorably to Stockwell, see Dorsey, 540 F.3d at 338,
he has failed to state a claim on which relief may be granted. Stockwell’s
pleadings and the administrative materials attached to his complaint, see Riley,
355 F.3d at 377, indicate that the prison medical staff attempted to ease
Stockwell’s pain with medication and both psychological and physiological pain
management techniques throughout the period of his incarceration at FCI-Fort
Worth.    Stockwell was treated throughout the period in question with
medication, although perhaps not always with specifically designated pain
medication.   His Percocet was discontinued on May 1, 2007, even though
whether he attempted to hide it is a factual issue he disputes. He was seen five
times in the triage unit and was advised to take part in a pain management
program. He commenced physical therapy in March 2007, and he was seen by
the physical therapist in September and October 2007. He was on a non-narcotic
pain reliever in September 2007 and was seeing psychological personnel for pain
management techniques. He was placed in the hospital in early 2008, where he
received medication and pain management therapy, and he returned to FCI-Fort
Worth with a prescription for medication. He began injection therapy in April
2009, which lasted until December 2009.

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      The occasional expiration of prescriptions when they could not be refilled,
requiring Stockwell to get his medication at sick call, was constitutionally
insignificant. “Continuing back pain is unpleasant. Its existence does not,
however, in and of itself demonstrate that a constitutional violation occurred.”
Mayweather v. Foti, 958 F.2d 91, 91 (5th Cir. 1992) An occasional missed dose
of medication does not, without more, constitute deliberate indifference. Id. As
for missed appointments for injection therapy, Stockwell sought damages from
the United States only, not from the individual defendants in a Bivens claim.
      Alone, continuing pain does not constitute a constitutional violation when
the deficiencies in care are minimal. See Mayweather, 958 F.2d at 91. The
pleadings and attached documents do not indicate deliberate indifference to
Stockwell’s serious medical needs. See Wilson, 503 U.S. at 297.
      Moreover, allegations of verbal abuse do not rise to the level of a
constitutional violation and may not serve as the basis for Bivens claims. See
Bender v. Brumley, 1 F.3d 271, 274 n. 4 (5th Cir.1993). Additionally, because
Stockwell did not receive constitutionally inadequate medical care, it follows
that prison officials to whom Stockwell complained did not demonstrate
deliberate indifference to his serious medical needs. See Wilson, 503 U.S. at 297.
As to Stockwell’s medical care claims, the judgment of the district court is
affirmed.
      Stockwell contends that the district court erred by denying his requests for
a preliminary injunction and temporary restraining order (TRO). He asserts
that the documents needed to prove his claims are at risk of being destroyed.
      The denial of a TRO is not appealable in light of the likelihood of
mootness. In re Lieb, 915 F.2d 180, 183 (5th Cir. 1990). The denial of a
preliminary injunction, however, is reviewed for an abuse of discretion. See
Women’s Med. Ctr. of Nw. Houston v. Bell, 248 F.3d 411, 418-19 (5th Cir. 2001).
Stockwell raised his contention that necessary documents might be destroyed in
his TRO motion; he did not raise that contention in his motion for a preliminary

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injunction. We thus lack jurisdiction to entertain Stockwell’s contention, see
Lieb, 915 F.2d at 183, and, as to the TRO contention, the appeal is dismissed for
lack of jurisdiction.
      The district court’s dismissal of Stockwell’s complaint counts as a strike
under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387 (5th
Cir. 1996). Stockwell is admonished that if he accumulates three strikes, he may
not proceed in forma pauperis in any civil action or appeal while he is
incarcerated or detained in any facility unless he is under imminent danger of
serious physical injury. See § 1915(g).
      AFFIRMED IN PART; DISMISSED IN PART; SANCTION WARNING
ISSUED.




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