IN THE UNITED STATES COURT OF APPEALS

           FOR THE FIFTH CIRCUIT
                   _______________

                     m 01-31484
                   Summary Calendar
                   _______________




                     MIKE BURGE,

                                        Plaintiff-Appellant,

                        VERSUS

 RICHARD L. STALDER; BURL CAIN; DARREL VANNOY;
PAT TRUETT; BARNES, DR.; DIFATTA, DR.; PREGO, DR.;
     TARVER, DR.; UNKNOWN GUTIERREZ, DR.;
                  LIZZY SMITH,
                         NURSE;
                     COCO, SGT.,
           EMERGENCY MEDICAL TECHNICIAN;
                      OTT, SGT.,
           EMERGENCY MEDICAL TECHNICIAN,
AND LOUISIANA STATE PENITENTIARY MEDICAL STAFF,

                                        Defendants-Appellees.


             _________________________

       Appeal from the United States District Court
          for the Middle District of Louisiana
                    m 01-CV-60-A
            _________________________

                    December 4, 2002
Before HIGGINBOTHAM, SMITH, and                            that because two other inmates received refer-
  CLEMENT, Circuit Judges.                                 rals despite noncompliance with the LSP refer-
                                                           ral policy, the refusal to refer him violated the
JERRY E. SMITH, Circuit Judge:*                            equal protection clause of the Fourteenth
                                                           Amendment. In addition to these federal con-
    Mike Burge filed this civil rights action              stitutional claims, Burge alleges certain state
under 42 U.S.C. § 1983 against state and pri-              law violations.
son officials, contending that they have dis-
criminatorily denied him necessary medical                     The defendants aver that Burge’s complaint
care in violation of his rights under the Eighth           fails to state a claim for relief; they assert the
and Fourteenth Amendments. He also asserts                 defense of qualified immunity. Burge seeks
unspecified state law claims. Agreeing with                damages and declaratory and injunctive relief.
the district court that Burge has failed to state          Specifically, he seeks an injunction ordering
a claim for the violation of constitutional                defendants to send him to a liver specialist, to
rights, we affirm the dismissal of the complaint           test his blood every sixty days, to order a biop-
in its entirety, under FED. R. CIV. P. 12(b)(6),           sy of his liver, and to hire a medical expert to
and without prejudice to any state law claims.             evaluate deficiencies in staffing and facilities.

                         I.                                                       II.
    Burge alleges that in January 2000 he was                 We review the grant of a rule 12(b)(6) mo-
diagnosed with hepatitis C. In February, he                tion de novo. Oliver v. Scott, 276 F.3d 736,
filed an administrative grievance requesting to            740 (5th Cir. 2002). We accept all well-plead-
be examined by a “liver specialist” and an                 ed facts as true and view them in the light most
“LSU doctor.” The administrative grievance                 favorable to the plaintiff. McCartney v. First
was denied. Over the course of the next year,              City Bank, 970 F.2d 45, 47 (5th Cir. 1992).
Burge received medical treatment for hepatitis
C and other medical conditions. Twice he re-                   Burge contends that the refusal to allow
newed his request for a referral to a liver spe-           him to see a liver specialist constituted a vio-
cialist; each time, his request was denied, one            lation of the Eighth Amendment’s prohibition
doctor telling him that such a referral would be           of cruel and unusual punishment. Prison offi-
ordered only if he failed three consecutive liver          cials violate the Eighth Amendment when they
function tests.                                            demonstrate deliberate indifference to a pris-
                                                           oner’s serious medical condition. Wilson v.
    Burge alleges that the failure to refer him to         Seiter, 501 U.S. 294, 297 (1991). Deliberate
a liver specialist constituted deliberate indiffer-        indifference requires a showing that the official
ence to his hepatitis condition in violation of            “knows that the inmate[] face[s] a substantial
the Eighth Amendment’s prohibition of cruel                risk of harm and disregards that risk by failing
and unusual punishment. He further alleges                 to take reasonable measures to abate it.” Far-
                                                           mer v. Brennan, 511 U.S. 825, 847 (1994). In
                                                           other words, an inmate pursuing a claim for
   *
     Pursuant to 5TH CIR. R. 47.5, the court has           deliberate indifference must show that prison
determined that this opinion should not be pub-            official “refused to treat him, ignored his com-
lished and is not precedent except under the limited       plaints, intentionally treated him incorrectly, or
circumstances set forth in 5TH CIR. R. 47.5.4.

                                                       2
engaged in any similar conduct that would              to a liver specialist because his September
clearly evince a wanton disregard for any se-          2000 liver test had been normal. Hand did
rious medical needs.” Domino v. Tex. Dep’t             consent, however, to conduct a current liver
of Criminal Justice, 239 F.3d 752, 756 (5th            test at Burge’s request.
Cir. 2001) (internal quotation and citation
omitted).                                                  The foregoing history demonstrates that
                                                       Burge was examined on a regular basis and
    Far from demonstrating the deliberate in-          treated for various ailments. On these facts, it
difference of the defendants, the facts alleged        is impossible to conclude that prison officials
by Burge establish that he had access to neces-        and medical staff were indifferent to Burge’s
sary medical care. In 1999, Burge sought               hepatitis. Instead, Burge’s complaint merely
treatment from prison doctor Burnes several            describes his disagreement with prison policy
times complaining of cramps. In January                requiring three abnormal liver tests before re-
2000, Burnes confirmed that Burge had hepa-            ferring inmates to a liver specialist. An in-
titis and prescribed vitamins. In May, Burge           mate’s disagreement with treatment policy,
was treated by a nurse practitioner for pain in        however, does not establish deliberate indiffer-
his left side. He saw the nurse practitioner           ence. Norton v. Dimazana, 122 F.3d 286, 292
again in July and was prescribed antibiotics for       (5th Cir. 1997). Accordingly, we agree with
a bladder infection. This course of treatment          the district court that Burge has failed to state
was followed by a visit to prison doctor Prego,        a claim for deliberate indifference.
who informed Burge that he was clear of the
infection.                                                                    III.
                                                           Burge argues that defendants demonstrated
   Burge later was treated by yet another phy-         favoritism toward certain inmates by referring
sician, Gutierrez, who informed him that he            them to liver specialists despite their failure to
could not see a liver specialist and that there        meet the LSP referral standard. Specifically,
was nothing wrong with him despite com-                Burge alleges that two inmates, Danny Fabre
plaints of pain and pressure. Burge noted in           and Bobby Turner, were referred to a special-
his complaint that in the ensuing months he            ist despite their noncompliance with the re-
received additional medical attention and was          quirement of three abnormal liver tests. Burge
placed on antibiotics by prison doctor DiFatta,        contends that such favoritism is contrary to the
who also prescribed a high-fiber diet, a breath-       mandate of the Equal Protection Clause “that
ing inhaler, colon medication, and testing.            all persons similarly circumstanced shall be
                                                       treated alike[.]” Cunningham v. Beavers, 858
   In October 2000, Prego conducted Burge’s            F.2d 269, 272 (5t h Cir. 1988) (citation omit-
annual physical, which provided another op-            ted).
portunity for the medical staff to evaluate his
condition, despite the fact that Burge contends            To succeed on his equal protection claim,
the physical was inadequate in comparison to           Burge must show “that an illegitimate animus
that given him by a Louisiana State University         or ill-will motivated [his] intentionally different
doctor in 1999. Finally, in January 2001,              treatment from others similarly situated and
Burge met with prison doctor Hand, who in-             that no rational basis existed for such treat-
formed him that he was ineligible for a referral       ment.” Shipp v. McMahon, 234 F.3d 907, 916


                                                   3
(5th Cir. 2000) (citing Village of Willowbrook            standard, and the dismissal for failure to state
v. Olech, 528 U.S. 562, 564 (2000)), cert.                a claim was appropriate.
denied, 532 U.S. 1052 (2001). Moreover,
“[d]iscriminatory purpose in an equal pro-                                      IV.
tection context implies that the decisionmaker               Burge appeals the denial of his requests to
selected a particular course of action at least in        amend his complaint and to conduct discovery
part because of, and not simply in spite of, the          before dismissal. We review these rulings for
adverse impact it would have on an identifiable           abuse of discretion.2
group.” Woods v. Edwards, 51 F.3d 577, 580
(5th Cir. 1995) (quoting United States v.                                        A.
Galloway, 951 F.2d 64, 65 (5th Cir. 1992)).                   Although FED. R. CIV. P. 15(a) provides
Therefore, to demonstrate that the alleged                that leave to amend “shall be freely given when
disparity of treatment constitutes an equal               justice so requires,” permission to amend
protection violation, Burge must demonstrate              pleadings “‘is by no means automatic.’” Par-
a discriminatory purpose. Id.                             ish, 195 F.3d at 763. Rather, “[t]he decision
                                                          ‘lies within the sound discretion of the district
    Burge asserts that certain prisoners, many            court.’” Id. (quoting Little v. Liquid Air
of them white, receive preferential medical               Corp., 952 F.2d 841, 845-46 (5th Cir. 1992)).
treatment. As evidence of this discrimination,            Burge did not seek to amend to present addi-
Burge offers only that Fabre and Turner re-               tional allegations that would cure the initial
ceived referrals to liver specialists despite their       defective pleading; instead, he sought to add
failure to meet the requirement of three abnor-           new defendants and allege facts that arose
mal liver tests and general allegations of dis-           after he filed his original complaint. Under
criminatory practices favoring an ill-defined             these circumstances, the district court did not
group of inmates. Burge alleges no specific               abuse its discretion in refusing to allow Burge
conduct or statements by any of the individual            to amend.3
defendants that would support an inference of
discriminatory intent.

    In the face of the assertion by a defendant              2
                                                               See Parish v. Frazier, 195 F.3d 761, 763 (5th
public official of the defense of qualified im-           Cir. 1999); Canady v. Bossier Parish Sch. Bd.,
munity, a § 1983 plaintiff must comply with a             240 F.3d 437, 444 (5th Cir. 2001) (citing Leather-
heightened pleading standard. Baker v. Put-               man v. Tarrant County Narcotics Intelligence &
nal, 75 F.3d 190, 195 (5th Cir. 1996). This               Coordination Unit, 28 F.3d 1388, 1394 (5th Cir.
heightened pleading standard “requires more               1994)).
than conclusory assertions. It requires claims               3
                                                               See Parish, 195 F.3d at 764 (finding no abuse
of specific conduct and actions giving rise to a
                                                          of discretion in denying motion to amend where
constitutional violation.” Id. Burge offers on-           amendment would increase delay and expand the
ly conclusional allegations of discrimination             allegations beyond scope of original complaint);
and fails to identify any specific instances of           Ross v. Houston Indep. Sch. Dist., 699 F.2d 218,
discriminatory conduct or expressions of dis-             229 (5th Cir. 1983) (finding no abuse of discretion
criminatory intent. His complaint therefore               in denying motion to amend where proposed
fails to comply with the heightened pleading              amendment sought to add new issues and parties
                                                          and required new discovery and additional hear-

                                                      4
    Further, “it is within the district court’s dis-       the time of the alleged acts.’”5 Given that
cretion to deny a motion to amend if it is fu-             Burge failed to state a claim, the district court
tile.” Stripling v. Jordan Prod. Co., 234 F.3d             did not err in dismissing his complaint without
863, 872-73 (5th Cir. 2000). A proposed                    allowing for discovery.
amendment is futile where “the amended com-
plaint would fail to state a claim upon which                 AFFIRMED.
relief could be granted.” Id. at 873. The al-
legations contained in Burge’s amended com-
plaint are similar in kind to those in the original
and fail to provide any support for his claims
of inadequate medical care and discriminatory
treatment. Because the complaint, as amend-
ed, still would fail to state a claim, it was with-
in the discretion of the district court to deny
Burge’s motion to amend.

                      B.
   Burge contends that the district court erred
by dismissing his claims without allowing dis-
covery that, as Burge appears to concede in
his brief, was never requested. We disagree.

    The purposes underlying the doctrine of
qualified immunity support the conclusion that
it is an immunity not merely from liability but
also from the costs associated with trial.4
Consequently, “[t]he district court need not al-
low any discovery . . . unless the ‘plaintiff has
supported his claim with sufficient precision
and factual specificity to raise a genuine issue
as to the illegality of defendant’s conduct at


                                                              5
                                                                 Reyes v. Sazan, 168 F.3d 158, 161 (5th Cir.
   3                                                       1999) (quoting Schultea v. Wood, 47 F.3d 1427,
    (...continued)
ings).                                                     1434 (5th Cir. 1995) (en banc)); see also Vander
                                                           Zee v. Reno, 73 F.3d 1365, 1368 (5th Cir. 1996)
   4
     See Mitchell v. Forsyth, 472 U.S. 511, 525-26         (“Even limited discovery on the issue of qualified
(1985); see also id. at 526 (stating that “even such       immunity ‘must not proceed until the district court
pretrial matters as discovery are to be avoided if         first finds that the plaintiff’s pleadings assert facts
possible, as ‘[i]nquiries of this kind can be pecu-        which, if true, would overcome the defense of
liarly disruptive of effective government’”) (quot-        qualified immunity.’”) (citing Wicks v. Miss. State
ing Harlow v. Fitzgerald, 458 U.S. 800, 817                Employment Serv., 41 F.3d 991, 994 & n.10 (5th
(1982)).                                                   Cir. 1995)).

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