     Case: 16-41724         Document: 00514904560         Page: 1    Date Filed: 04/05/2019




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


                                        No. 16-41724                                 FILED
                                                                                  April 5, 2019
                                                                                Lyle W. Cayce
GEORGE EDWARD TUSTIN, JR.,                                                           Clerk

                 Plaintiff - Appellant

v.

BRAD LIVINGSTON; BRYAN COLLIER, EXECUTIVE DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE; FRANKIE REESCANO;
PATRICIA LECUYER; EUGENE G. MAINOUS; NICHOLAS RUSSO;
STEPHEN HAMILTON, Doctor of Dental Surgery; PAUL E. STRUNK,
University of Texas Medical Branch Stringfellow R-2 Unit; ELGENE G.
MAINOUS, Doctor of Dental Surgery,

                 Defendants - Appellees




                     Appeal from the United States District Court
                          for the Southern District of Texas
                               USDC No. 3:12-CV-0022


Before JOLLY and ENGELHARDT, Circuit Judges.*
PER CURIAM:**
       George Edward Tustin, Jr., Texas prisoner #443411, filed this pro se
§ 1983 civil rights lawsuit alleging that prison officials and healthcare


       *   This matter is being decided by a quorum. See 28 U.S.C. § 46(d).
       **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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-41724
providers refused to extract his abscessed tooth. He claims that the extreme
pain he suffered during the four years he awaited surgery constituted cruel
and unusual punishment in violation of the Eighth Amendment. The district
court dismissed Tustin’s complaint for failure to state a claim, reasoning that
the allegations did not amount to deliberate indifference.              We previously
granted Tustin leave to proceed in forma pauperis on appeal. We now affirm
the district court.
                                           I.
      Tustin, who is incarcerated in the Texas Department of Criminal Justice
(TDCJ), suffers from numerous medical conditions. 1 In 1994, he was diagnosed
as having an arachnoid cyst on his brain. In 1998, he was diagnosed as
suffering from widespread cerebral dysfunction following an abnormal EEG.
In March 2009, he began experiencing dental problems. On March 4, Tustin
saw a prison dentist due to swelling and pain on his #20 tooth. Tustin is
allergic to the local anesthetic used in dental procedures, and therefore, the
dentist performed the filling without anesthetic to avoid a possible allergic
reaction.
      Eight days later, on March 12, Tustin returned to the dentist about an
abscess and pain on his #20 tooth. The tooth needed to be removed, but the
prison dentist could not perform the procedure because of Tustin’s allergies to
local anesthetics.     Instead, the dentist prescribed Tustin antibiotics and
ibuprofen for the pain and referred him to an oral surgeon at the University of
Texas Medical Branch (UTMB) in Galveston. Tustin was scheduled to have
the tooth extracted at UTMB Galveston on July 20, 2009. On the bus en route
to UTMB Galveston, however, Tustin suffered a seizure. Tustin was diverted


      1 The following facts are drawn from Tustin’s live complaint, filed on February 18,
2016, and the medical records that Tustin has attached to and incorporated into his
complaint.
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                                   No. 16-41724
to the Byrd Unit in Huntsville where he was treated and prescribed anti-
seizure medicine. Due to his cyst, dentists refused to extract Tustin’s #20
tooth.
         Tustin saw the prison dentist again in February 2010. The dentist stated
that he would refer Tustin back to UTMB Galveston to have the #20 tooth
removed. During another appointment with the prison dentist in April 2010,
Tustin was again told that he would be sent back to UTMB Galveston to have
the tooth extracted.
         Tustin saw two other prison dentists in 2010. In September 2010, Tustin
saw a prison dentist for teeth cleaning. The dentist noted defects on the #5
and #31 tooth and stated that he would see if Tustin needed to be sent to UTMB
for surgery. In December 2010, Tustin saw Dr. Nicholas Russo, who noted that
Tustin complained of problems with his #5, #17, and #31 teeth. Dr. Russo
asked Tustin if he would like to have his #5 tooth restored without local
anesthetics and Tustin agreed.       Dr. Russo also referred Tustin to UTMB
Galveston to have his #17 tooth extracted.
         In March 2011, Dr. Russo attempted to perform a restoration on tooth
#20 without local anesthetic due to Tustin’s allergy. During the procedure,
however, Tustin became unresponsive and he was moved to the emergency
room for treatment.       The prison dentist followed up with Tustin in the
emergency room. Tustin informed the dentist that he suffered from daily
blackouts due to the cyst on his brain. The dentist rescheduled the restoration
procedure.
         On April 4, 2011, Tustin saw Dr. Elgene Mainous at UTMB Galveston.
Dr. Mainous told Tustin that he would not allow UTMB dentists to put Tustin
under general anesthesia for tooth extractions until his cyst was treated or
removed. Tustin, however, was still able to receive unanesthetized treatment
and, on April 5, Dr. Russo completed a filling on his #5 tooth. Tustin continued
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                                No. 16-41724
to visit prison dentists throughout 2011. Those dentists noted that Tustin’s
#20 tooth extraction was delayed due to complications caused by his cyst and
that he was awaiting a neurological assessment.       But Tustin had trouble
getting clearance from neurologists to undergo general anesthesia.        At a
neurological consultation in November 2011, Tustin reported that he was
suffering from worsening headaches and seizure-like muscle spasms multiple
times a day despite his anti-seizure medication. This was confusing to the
doctors who examined him because his “symptoms are not [consistent with]
typical seizure descriptions” and “arachnoid cysts do[] not often present with
headaches.” Tustin was scheduled to undergo an EEG to determine if he was
suffering from seizures and the neurosurgeon suggested the possibility of
surgery to decompress the arachnoid cyst.
      Tustin also suffered from intermittent chest pain. When this condition
began worsening in 2011, his unit doctors required him to undergo a stress test
to be cleared for surgery. Tustin was unable to complete at least one stress
test due to a vasovagal response.
      Despite these hurdles, prison dentists still attempted to treat Tustin’s
dental problems. According to Tustin, Dr. Russo prescribed him over 450 doses
of pain medication and 40 doses of antibiotics from September 2011 through
January 2013; Dr. Stephen Hamilton prescribed Tustin over 200 doses of pain
medication; Patricia LeCuyer, NP, prescribed Tustin over 200 doses of pain
medication and 50 doses of antibiotics. One UTMB dentist even referred
Tustin for a dermatology consultation to determine whether he was allergic to
lidocaine or certain preservatives within the anesthetics in hope that they
could “do these extractions in clinic with local anesthetics.” On February 6,
2013, Dr. Mainous cleared Tustin for surgery and extracted his #17, #19, #20,
and #31 teeth.


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                                      No. 16-41724
                                            II.
       Tustin, proceeding pro se and in forma pauperis filed a claim for damages
and injunctive relief in federal district court, arguing that the delay in
removing his #20 tooth violated the Eighth and Fourteenth Amendments.
Tustin also alleged a violation of Texas state law. The defendants filed a
motion to dismiss for lack of subject matter jurisdiction and failure to state a
claim. Fed. R. Civ. P. 12(b)(1), (6). The district court dismissed Tustin’s federal
claims with prejudice under 28 U.S.C. § 1915(e)(2)(B) for failure to state a
claim and declined to exercise supplemental jurisdiction over his state law
claims pursuant to 28 U.S.C. § 1367(c)(3). The district court determined that
Tustin’s allegations did not amount to deliberate indifference because they did
not establish that anyone who treated him refused to help or treat Tustin. We
granted Tustin leave to proceed in forma pauperis on whether the district court
erred in determining that the delay in treatment was not caused by deliberate
indifference. 2
                                            III.
       We review de novo a dismissal pursuant to § 1915(e)(2)(B)(ii), which is
the same standard applied to dismissals under Fed. R. Civ. P. 12(b)(6). See
Ruiz v. United States, 160 F.3d 273, 275 (5th Cir. 1998). Under that standard,
“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, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). We
accept as true all well-pleaded facts, “viewing them in the light most favorable
to the plaintiff.” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th



       2Tustin did not appeal the denial of injunctive relief or dismissal of his Fourteenth
Amendment claim and therefore he has abandoned them. See Youhey v. Collins, 985 F.2d
222, 224–25 (5th Cir. 1993); Brinkmann v. Dallas Cty. Deputy Sheriff Abner, 813 F.2d 744,
748 (5th Cir. 1987).
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                                 No. 16-41724
Cir. 2007).   We hold allegations of pro se complaints “to less stringent
standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404
U.S. 519, 520–21 (1972).
                                        IV.
      To state a claim under 42 U.S.C. § 1983 for violation of the Eighth
Amendment, a prisoner must allege that prison officials showed “deliberate
indifference to a prisoner’s serious illness or injury.” Estelle v. Gamble, 429
U.S. 97, 104 (1976). The standard for deliberate indifference is “subjective
recklessness.” Farmer v. Brennan, 511 U.S. 825, 839–40 (1994). For a prison
official to be liable, he must “know[] of and disregard[] an excessive risk to
inmate health or safety.” Id. at 837.
      To establish deliberate indifference, Tustin must show “that a prison
official ‘refused to treat him, ignored his complaints, intentionally treated him
incorrectly, or engaged in any similar conduct that would clearly evince a
wanton disregard for any serious medical needs.’” Easter v. Powell, 467 F.3d
459, 464 (5th Cir. 2006) (quoting Domino v. Tex. Dep’t of Criminal Justice, 239
F.3d 752, 756 (5th Cir. 2001)). Delay in medical care, however, “can only
constitute an Eighth Amendment violation if there has been deliberate
indifference [that] results in substantial harm.” Id. (alteration in original)
(quoting Mendoza v. Lynaugh, 989 F.2d 191, 193 (5th Cir. 1993)). An allegation
of “[u]nsucessful medical treatment does not give rise to a § 1983 cause of
action. Nor does mere negligence, neglect or medical malpractice.” Varnado v.
Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991) (citations and internal quotation
marks omitted).
      Tustin has failed to state a claim for deliberate indifference. In response
to Tustin’s complaint that his #20 tooth was abscessed, he was referred to
UTMB Galveston to have it removed in July 2009. This surgery was only
delayed because Tustin suffered a seizure while being transported to the
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                                  No. 16-41724
hospital. Tustin, however, continued to receive treatment from prison dentists,
although they could not fill or remove the tooth at the prison hospital because
he was allergic to local anesthetics. By his own estimate, Tustin had at least
six appointments with prison or UTMB dentists in 2010. And he admits that
he was prescribed pain medication and antibiotics to treat his condition.
During this period, from 2009 until 2011, Tustin received ongoing dental
treatment. Banuelos v. McFarland, 41 F.3d 232, 235 (5th Cir. 1995) (“Medical
records of sick calls, examinations, diagnoses, and medications may rebut an
inmate’s allegations of deliberate indifference.” (citing Mendoza, 989 F.2d at
193–95)). In 2011, Dr. Russo attempted to perform a root canal on tooth #20
without local anesthesia but was unable to complete the procedure because of
Tustin’s neurological problems.     Further delay in Tustin’s treatment was
caused by Dr. Mainous’s decision that Tustin receive treatment for his cyst
before being placed under general anesthesia. Prison officials, therefore did
not “refuse[] to treat him, ignore[] his complaints, intentionally treat[] him
incorrectly, or engage[] in any similar conduct that would clearly evince a
wanton disregard for any serious medical needs.” Domino, 239 F.3d at 756
(quoting Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985)).           To the
contrary, the decision was “a classic example of a matter for medical
judgment.”    Id. (quoting Estelle, 429 U.S. at 107).       Ultimately, Tustin’s
allegations are simply disagreements with the treatment decisions made by
his dentists. That is insufficient to state a claim of deliberate indifference.
                                        V.
      In short, Tustin received ongoing treatment for his dental problems. The
decision not to remove Tustin’s tooth was a matter of medical judgment, not
deliberate indifference. The judgment of the district court is
                                                                     AFFIRMED.


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