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

                                                 FILED
                                                                         December 22, 2009

                                     No. 09-40383                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



GEORGE HARRY DAVIS, JR.,

                                                   Plaintiff - Appellant
v.

UNITED STATES OF AMERICA; RUDY CHILDRESS, Warden;
UNIDENTIFIED HOLLIFIELD, Food Service Supervisor; UNIVERSITY OF
TEXAS MEDICAL BRANCH; J WELLS, Medical Assistant Administrator;
ANICETO DOMINGUEZ, M.D.; UP DUPREE, Nurse; UP GILDCREST,
Nurse,

                                                   Defendants - Appellants




                   Appeal from the United States District Court
                        for the Eastern District of Texas
                              USDC No. 1:06-CV-85


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       George Harry Davis, Jr., a federal prisoner proceeding pro se and in forma
pauperis, appeals the dismissal of his Bivens complaint. For the reasons stated
below, we affirm in part, vacate in part, and remand for further proceedings.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                       No. 09-40383

                            FACTS AND PROCEEDINGS
       Davis is a federal prisoner incarcerated in Beaumont, Texas. On May 25,
2005, while working in the prison bakery, Davis suffered a laceration on his left
fifth finger. The incident resulted in a ruptured flexor tendon. The day of his
injury, Davis was transported to a local hospital where his injury was sutured.
Davis eventually underwent surgery on June 20, 2005 at the University of Texas
Medical Branch hospital (UTMB). He was provided pain medication and a splint
to stabilize the injury. On several occasions in July and December 2005, Davis
underwent physical therapy with a prison therapist.
       After exhausting administrative remedies, Davis filed a complaint on
February 15, 2006 pursuant to Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971). He alleged that the defendants’
conduct amounted to deliberate indifference to his serious medical needs in
violation of the Eighth Amendment. He argued that delays in providing surgery
and therapy resulted in increased pain and potentially permanent damage to his
left hand. On September 13, 2006, pursuant to a court order, the United States
Attorney’s Office filed on behalf of the defendants a Martinez report 1 responding
to the allegations in Davis’s complaint. On October 12, 2006, Davis filed, and on
August 23, 2007, the district court granted, Davis’s motion to amend his
complaint. His amended complaint added a claim against Associate Warden Ken
Everhart and Food-Service Cook Supervisor Richard Perry, alleging that they
forced him to work beyond his documented medical restrictions. To his amended
complaint, Davis attached exhibits evincing his pursuit of administrative
remedies for the forced work claim.




       1
        Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978); see also Cay v. Estelle, 789 F.2d 318,
323 n.4 (5th Cir. 1986). Because the Martinez report was filed prior to Davis’s amended
complaint, it responded only to the allegations contained in the original complaint.

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       The district court construed the Martinez report as a motion for summary
judgment, which it granted, dismissing the entirety of Davis’s case with
prejudice. First, it dismissed the claims against the United States and UTMB
on sovereign immunity grounds. Second, it dismissed Warden Rudy Childress
and Medical Assistant Administrator J. Wells because they lacked personal
involvement in Davis’s medical treatment. Third, the court concluded that the
conduct Davis complained of did not amount to deliberate indifference under the
Eighth Amendment. Finally, the court ruled that Davis had not exhausted
administrative remedies on his forced work claim and dismissed the claim on
that basis. Davis timely appealed.
                              STANDARD OF REVIEW
       We review the district court’s grant of summary judgment de novo.
Hernandez v. Velasquez, 522 F.3d 556, 560 (5th Cir. 2008). Summary judgment
is appropriate if the submissions show that “there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a matter of law.”
F ED R. C IV. P. 56(c). When deciding whether a fact issue exists, we review the
evidence and the inferences drawn from it in the light most favorable to the
nonmoving party. Hernandez, 522 F.3d at 560. Even if this court disagrees with
the reasons given by the district court, it may affirm a grant of summary
judgment on any grounds supported by the record and presented to the court
below. Id.
                                     DISCUSSION
       Davis makes three main arguments on appeal.2 First, he argues that the
district court erred in finding no Eighth Amendment violation in the defendants’



       2
         Davis also devotes a portion of his brief to whether defendants Dominguez, Dupree,
and Gildcrest are entitled to a qualified immunity defense. Qualified immunity was not
asserted by any defendant, nor was it a basis for the district court’s judgment. This argument
is therefore misplaced.

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conduct. Second, he argues that the dismissal of Childress and Wells for lack of
personal involvement was erroneous. Finally, Davis contends that, contrary to
the district court’s conclusion, he did not fail to exhaust his administrative
remedies for the forced work claim presented in his amended complaint. Davis
does not challenge the district court’s decision to dismiss the United States and
UTMB on sovereign immunity grounds.
A.    Deliberate Indifference
      The district court concluded that Davis received adequate medical care
and, moreover, that the alleged delays in surgery and therapy were not
attributable to any named defendant. On appeal, Davis attributes his surgery
delay to UTMB’s “policies for surgery referrals” and the prison’s “security
policies” without specific allegation of wrongdoing by a named defendant.
Meanwhile, his brief contains a conclusory assertion that defendants Childress
and Wells “ignored” his scheduled therapy appointments. Even if true, that
allegation would be insufficient to satisfy the deliberate indifference standard
because it does not establish the requisite “culpable state of mind” of the
defendants. Calhoun v. Hargrove, 312 F.3d 730, 734 (5th Cir. 2002) (“To find
that an official is deliberately indifferent, it must be proven that ‘the official
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.’”
(quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994))); see also Easter v. Powell,
467 F.3d 459, 463 (5th Cir. 2006) (recognizing a claim for delayed medical care,
but only where the deliberate indifference of prison officials results in
substantial harm).
      Davis’s claim is essentially that the provided treatment was inadequate
or negligent or both. Yet, as this court has held, “the decision whether to provide
additional treatment is a classic example of a matter for medical judgment,” and

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thus not cognizable under the Eighth Amendment. Gobert v. Caldwell, 463 F.3d
339, 346 (5th Cir. 2006) (quotation omitted). “Unsuccessful medical treatment,
acts of negligence, or medical malpractice do not constitute deliberate
indifference, nor does a prisoner’s disagreement with his medical treatment,
absent exceptional circumstances.”     Id. We agree with the district court that
Davis did not present a genuine issue of material fact that the defendants were
deliberately indifferent to serious medical needs with respect to his treatment.
B.    Lack of Personal Involvement
      Davis argues that the dismissal of Childress and Wells for lack of personal
involvement was erroneous because those defendants relied on extant hospital
and prison policies that caused delays in his treatment. An individual official
may be held liable “only for implementing a policy that is itself [ ] a repudiation
of constitutional rights and the moving force of the constitutional violation.”
Oliver v. Scott, 276 F.3d 736, 742 (5th Cir. 2002) (quotation omitted). Davis does
not identify any specific policy allegedly relied upon by Childress or Wells. For
that reason, the district court’s dismissal of those defendants for lack of personal
involvement was not improper.
C.    Forced Work Claim
      Davis argues that the district court erred in dismissing sua sponte his
forced work claim due to a failure to exhaust administrative remedies. The
forced work claim is based on the alleged conduct of Associate Warden Everhart
and Food-Service Cook Supervisor Perry from January to May 2006. Davis
alleged that Perry, under direction from Everhart, forced him to continue
working in the food service bakery in violation of documented medical
restrictions which Davis had provided to Perry. Davis asserted that Perry’s and
Everhart’s conduct subjected him to extreme pain and suffering in violation of
the Eighth and Fourteenth Amendments.



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       Davis presented this claim in an amended complaint, filed by leave of
court on August 23, 2007. The district court concluded that Davis had not
exhausted his administrative remedies and dismissed sua sponte his forced work
claim. In Jones v. Bock, the Supreme Court held “that failure to exhaust is an
affirmative defense under the [Prison Litigation Reform Act], and that inmates
are not required to specially plead or demonstrate exhaustion in their
complaints.” 549 U.S. 199, 216 (2007); see also Carbe v. Lappin, 492 F.3d 325,
328 (5th Cir. 2007) (“Any failure to exhaust must be asserted by the
defendant.”).3 The district court erred by sua sponte dismissing the forced work
claim for failure to exhaust; that dismissal must be vacated and the case
remanded for further proceedings.
                                      CONCLUSION
       The judgment of the district court is VACATED insofar as it resulted in
the dismissal of Davis’s forced work claim. The judgment is AFFIRMED in all
other respects, and the case is REMANDED for further proceedings.




       3
         As noted by the district court, Jones left open the possibility that a case may be
dismissed “for failure to state a claim, predicated on failure to exhaust, if the complaint itself
makes clear that the prisoner failed to exhaust.” Carbe, 492 F.3d at 328. The district court
dismissed the claim on this basis, reasoning that Davis initiated administrative grievances
after he filed the original complaint. A review of the record, however, shows that Davis did
pursue administrative remedies for the conduct underlying his forced work claim prior to
seeking leave to amend his complaint in October 2006. Moreover, his amended complaint
alleges that he did so and includes documentation of his grievances. The district court appears
to have ignored the filing of the amended complaint, and its conclusion that “plaintiff could
not have exhausted administrative remedies with respect to incidents that took place after the
lawsuit was filed” was therefore erroneous.

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