     Case: 11-40812     Document: 00511796741         Page: 1     Date Filed: 03/22/2012




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

                                                                            FILED
                                                                          March 22, 2012
                                     No. 11-40812
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

CHARLES RICKY CHOYCE, JR.,

                                                  Plaintiff-Appellant

v.

MEDICAL SUPERVISOR ADAM VELEZ, Practice Manager at Telford Unit;
REGINALDO F. STANELY, MD at Telford Unit; CLAIRE T. RUSSELL, Mid
Level Practitioner at Telford Unit; TONYA TRAYLOR, Nurse Clinician III at
Telford Unit,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 5:10-CV-181


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        Charles Ricky Choyce, Jr., Texas prisoner # 690391, appeals the district
court’s dismissal of his 42 U.S.C. § 1983 complaint upon the defendants’ motion
for summary judgment. Choyce alleged that the defendants failed to meet his
serious medical needs with regard to his distal rectal ulcerative proctitis, a foot



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-40812

fungus, back, hip, and leg pain, a lump under his scalp, and the side effects of
Nortriptyline, an anti-depressant medication.
      This court reviews de novo a grant of summary judgment, applying the
same legal standards that a district court applies. Cuadra v. Houston Indep.
School Dist., 626 F.3d 808, 812 (5th Cir. 2010), cert denied, 131 S. Ct. 2972
(2011). Summary judgment is appropriate if the record discloses “that 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) (2010). The facts and all
inferences are viewed in favor of the nonmoving party. Cuadra, 626 F.3d at 812.
However, the nonmovant cannot defeat summary judgment with conclusional
allegations or unsubstantiated assertions. Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir. 1994).
      To the extent Choyce sued the defendants in their official capacities for
monetary damages, the district court correctly determined that the Eleventh
Amendment barred such claims. See Hughes v. Savell, 902 F.2d 376, 377-78 (5th
Cir. 1990).
      The district court similarly did not err in finding that the defendants were
entitled to qualified immunity insofar as Choyce was suing them in their
individual capacities. Qualified immunity generally shields government officials
performing discretionary functions, such as the administration of medical care,
from liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known. See Easter v. Powell, 467 F.3d 459, 462 (5th Cir. 2006). “A prison
official violates the Eighth Amendment’s prohibition against cruel and unusual
punishment when his conduct demonstrates deliberate indifference to a
prisoner’s serious medical needs, constituting an unnecessary and wanton
infliction of pain.” Id. at 463 (internal quotation marks and footnoted citation
omitted). The mere delay of medical care can constitute an Eighth Amendment



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                                  No. 11-40812

violation only if there has been deliberate indifference that results in substantial
harm. See id.
      On appeal, Choyce challenges the district court’s findings, asserting that
the defendants delayed, denied, deprived, and refused medical care and
treatment of his referenced medical issues. However, his medical records show
that he received an abundance of medical care, and he has not shown any
intentional delay or refusal to provide him with medical treatment for his
proctitis or for any other medical condition for which he requested treatment.
In light of the medical information in the summary judgment evidence, Choyce
has not shown that the defendants were deliberately indifferent to his serious
medical needs. At most, he has established a disagreement with his treatment
or unsuccessful treatment, neither of which amounts to a constitutional
violation. See Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991). Insofar
as he alleges that he should have received further treatment, “[t]he decision
whether to provide additional treatment is a classic example of a matter for
medical judgment.” Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006).
Accordingly, the district court did not err in finding that the defendants were
entitled to qualified immunity and in granting their motion for summary
judgment.
      Next, Choyce argues that the district court erred in not allowing him to
proceed anonymously so as to protect his privacy, health, and safety. However,
Choyce filed the instant complaint using his name rather than John Doe, and he
did not request to proceed anonymously.
      In addition, Choyce argues that the trial court should have investigated
his claim and compiled evidence for him. This argument is nonsensical, as it is
counsel’s duty to investigate and compile evidence; the court must remain
strictly impartial. See United States v. Saenz, 134 F.3d 697, 702 (5th Cir. 1998);
Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir. 1982).



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                                 No. 11-40812

      Choyce next argues that the district court abused its discretion by failing
to provide him with an expert witness and a physical and mental examination.
The district court does not have authority to appoint an expert witness under 28
U.S.C. § 1915 (the in forma pauperis statute). Pedraza v. Jones, 71 F.3d 194,
197 (5th Cir. 1995). Although the district court may appoint an expert witness
under FED. R. EVID. 706(a), the rule does not provide for government funding of
such a witness.     See FED. R. EVID. 706(c).    As for a physical or mental
examination, neither party filed a motion for an examination of Choyce.
Moreover, neither Choyce’s physical or mental state was in controversy, as the
defendants did not deny that he suffered from the asserted medical issues, and
Choyce did not claim any mental issues. See FED. R. CIV. P. 35; Acosta v.
Tenneco Oil Co., 913 F.2d 205, 210 (5th Cir. 1990). The district court did not
abuse its discretion in failing to sua sponte order an examination of Choyce.
      Finally, Choyce asserts that the defendants falsified and fabricated
documents and statements and knowingly used perjured testimony and false
evidence.   He does not identify the falsified or fabricated documents and
statements, the perjured testimony, or the false evidence to which he refers. The
assertion is therefore wholly conclusory.
      The judgment of the district court is AFFIRMED. Choyce’s motion for the
appointment of counsel is DENIED.




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