     Case: 12-60214       Document: 00512267616         Page: 1     Date Filed: 06/10/2013




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

                                                                            FILED
                                                                           June 10, 2013
                                     No. 12-60214
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

DENNIS O’NEAL LEE,

                                                  Plaintiff-Appellant

v.

STEVE RUSHING, Sheriff,

                                                  Defendant-Appellee


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:10-CV-623


Before STEWART, Chief Judge, and KING and CLEMENT, Circuit Judges.
PER CURIAM:*
       Dennis O’Neal Lee, Mississippi prisoner # 101953, appeals the magistrate
judge’s judgment granting defendant Steve Rushing’s motion for summary
judgment and dismissing his 42 U.S.C. § 1983 complaint alleging that Rushing
was responsible for a delay in his receiving medical care for an infection of his
scalp and for enforcing a deficient medical care policy at the jail. He also appeals
the magistrate judge’s dismissal of his complaint against Warden James Holman
and Dr. Hein Schafer for failure to state a claim.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 12-60214     Document: 00512267616     Page: 2   Date Filed: 06/10/2013

                                  No. 12-60214

      Lee’s contention that the magistrate judge should not have granted a
summary judgment because he did not receive proper notice of his burden of
proof is without merit because Lee provided affidavits and other documents that
reflected that he was aware of his right to submit documentary evidence to
dispute the facts alleged by the Sheriff. Nor did the magistrate judge abuse his
discretion in precluding discovery of Lee’s medication sign-in sheets. Lee did not
demonstrate that the logs would have rebutted the evidence that his missed dose
of medicine was an act of negligence and that the Sheriff implemented a
sufficient policy of providing inmates with their prescribed medication. See Krim
v. BancTexas Group, Inc., 989 F.2d 1435, 1441 (5th Cir. 1993).
      In response to Rushing’s summary judgment evidence that Rushing had
no knowledge of Lee’s scalp condition until late December 2009 and that Lee was
under medical treatment at that time, Lee introduced evidence to show that
Sheriff Rushing was aware of his serious scalp condition in November 2009 and
that his failure to ensure his receipt of timely medical care and medication
showed deliberate indifference to a serious risk of harm. If there were some
delays or omissions in Lee’s medical treatment, the evidence showed that the
Sheriff had no personal involvement in Lee’s medical care, Lee’s medical
complaints were monitored by the jail’s medical personnel, he was under the
care of a doctor and was taken to the hospital emergency room, and he also
received various forms of medication to treat his scalp condition. Lee has failed
to present competent evidence raising a genuine dispute as to a material fact
regarding whether Sheriff Rushing intentionally ignored his medical complaints
or denied him treatment. See Scott v. Harris, 550 U.S. 372, 380 (2007); Domino
v. Texas Dep’t of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001). Nor did
Lee provide competent evidence raising a genuine issue of fact about the
adequacy of the jail’s medical care policy because his complaints were rebutted
by the evidence showing that he received competent medical treatment for his
scalp condition. Lee failed to present evidence that Sheriff Rushing knowingly

                                        2
    Case: 12-60214     Document: 00512267616      Page: 3    Date Filed: 06/10/2013

                                  No. 12-60214

enforced a deficient policy that resulted in a violation of his constitutional right
to medical care. In the absence of a showing of a constitutional violation,
Rushing was entitled to the defense of qualified immunity, and his motion for
summary judgment was properly granted. See Brown v. Callahan, 623 F.3d 249,
253 (5th Cir. 2010).
      We reject Lee’s assertion that the magistrate judge erred in dismissing the
complaint against Warden Holman prior to allowing Lee to conduct discovery
because Lee failed to allege that Warden Holman was aware of the alleged
unsafe barbering practices or that the warden personally participated in his
medical care. See Ashcroft v. Iqbal, 556 U.S. 662, 674 (2009). Nor did the
magistrate judge err in dismissing Lee’s claim against Dr. Schafer because Lee’s
allegations reflect only his disagreement with the treatment chosen by Dr.
Schafer and, at worst, a claim of medical malpractice. These allegations failed
to give rise to an inference that Dr. Schafer acted with deliberate indifference to
Lee’s medical needs. Thus, the magistrate judge did not err in dismissing the
complaint for failure to state a claim. See id.; Varnado v. Lynaugh, 920 F.2d
320, 321 (5th Cir. 1991).
      Finally, the magistrate judge did not abuse his discretion in denying Lee’s
motion for appointment of counsel because Lee has not shown that his case was
exceptional, and he presented detailed factual allegations and the applicable law
to the court. See Baranowski v. Hart, 486 F.3d 112, 126 (5th Cir. 2007).
      AFFIRMED.




                                         3
