      Case: 12-40579          Document: 00512095934               Page: 1   Date Filed: 12/27/2012




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

                                                                                    FILED
                                                                               December 27, 2012
                                          No. 12-40579
                                        Summary Calendar                           Lyle W. Cayce
                                                                                        Clerk

CHESTER LOWE HUFF,

                                                             Plaintiff-Appellant

v.

MARIA MANFREDI; LANELLE D. WHITE; DR. NIMA; DR. TIRGAN;
ESCHAVAREZ ERK; ET AL;

                                                             Defendants-Appellees

----------------------------------------------------------

CHESTER LOWE HUFF,

                                                             Plaintiff-Appellant

v.

RICK THALER, ET AL,

                                                             Defendant-Appellee


                      Appeal from the United States District Court
                           for the Southern District of Texas
                                 USDC No. 2:12-CV-43
                                 USDC No. 2:12-CV-67
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                                       No. 12-40579

Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Chester Lowe Huff, Texas prisoner # 582855, filed a 42 U.S.C. § 1983
complaint arguing that the Texas Department of Criminal Justice (TDCJ-ID),
the University of Texas Medical Branch (UTMB), and 34 individual employees
of either the TDCJ or UTMB were deliberately indifferent to his serious medical
needs. Specifically, he argued that the defendants delayed and denied him
treatment for an eye infection that caused him constant pain, a swollen cheek,
and blurry vision. He also asserted that the defendants retaliated against him
for filing grievances. Huff consented to proceed before a magistrate judge who
dismissed his complaint for failure to state a claim and as frivolous pursuant to
28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b)(1).
       Because the magistrate judge found that Huff’s complaint was both
frivolous and failed to state a claim under both § 1915(e) and § 1915A, our
review is de novo. See Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005)
(reviewing dismissal of the complaint de novo where both standards of review
were applicable). Other than naming Rick Thaler, Eileen Kennedy, Cheryl
Lawson, and Ernest Guterrez as defendants in his brief, Huff does not allege any
facts supporting claims against these defendants. He also does not challenge the
magistrate judge’s decision that the Eleventh Amendment barred his claims
against the TDCJ-ID, the UTMB, and the defendants in their official capacities.
Further, Huff does not challenge the magistrate judge’s order transferring his
claims against Doctor Nguyen, Dr. Nima, Doctor Tirgan, and Dr. Balel Baker
to the Southern District of Texas, Galveston Division. Accordingly, Huff has
abandoned his claims against the above defendants before this court. See Yohey




       *
         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. 12-40579

v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); Brinkmann v. Dallas County
Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
      Huff contends that the magistrate judge was biased and misconstrued his
Spears1 hearing testimony. However, a review of the recording of the Spears
hearing does not support Huff’s contention that the magistrate judge
misconstrued his testimony or spoke to him “in a hate tone a voice.” Huff’s bias
argument really appears to be based on the magistrate judge’s adverse rulings
against him; this evidence alone is not sufficient to establish bias. See Liteky v.
United States, 510 U.S. 540, 555 (1994).
      Prison officials violate the Eighth Amendment’s prohibition against cruel
and unusual punishment when they demonstrate deliberate indifference to a
prisoner’s serious medical needs, constituting an “unnecessary and wanton
infliction of pain.” See Estelle v. Gamble, 429 U.S. 97, 104–05 (1976) (internal
quotations and citation omitted).             A prison official acts with deliberate
indifference if he “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.” Farmer v. Brennan, 511 U.S. 825, 837 (1994); see Reeves v. Collins,
27 F.3d 174, 176–77 (5th Cir. 1994) (applying Farmer to medical care claim). In
the case of a claim for denial of medical care, “the facts underlying a claim of
deliberate indifference must clearly evince the medical need in question and the
alleged official dereliction.” Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir.
1985) (internal quotations and citation omitted).
      As to Norris Jackson and William Burgin, Huff’s assertion that these
defendants denied him medical care in violation of the Eighth Amendment by
ignoring his grievances complaining that he was being denied medical care for
his infected eye is unavailing. The record reflects that Huff’s grievances were


      1
          Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).

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                                 No. 12-40579

investigated and responded to by Jackson and Burgin. To the extent that Huff
challenges the denial of his grievances, he has failed to allege a constitutional
violation. See Geiger, 404 F.3d at 374. Huff does not challenge the magistrate
judge’s determination that the implementation and execution of Administrative
Directive 06.62 is not unconstitutional. Accordingly, he has abandoned any
constitutional challenge to the policy. See Brinkmann, 813 F.2d at 748. Further,
Huff’s condition was not classified as a medical emergency and he has not shown
that he suffered substantial harm in connection with any delay in receiving
medical treatment as a result of the application of Administrative Directive
06.62. See Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993). Accordingly,
the magistrate judge did not err in dismissing Huff’s claims against these
defendants.
      As the magistrate judge noted, Huff seemingly sued every medical
personnel and security officer he encountered between April 2011 through
November 2011. Huff, however, has made no showing of deliberate indifference
on the part of the defendants and thus has not shown that the magistrate judge
erred in determining that the defendants did not violate his constitutional
rights. The record indicates that Huff received ongoing treatment for his eye
infection. At most, Huff alleges inconsequential delays in medical treatment,
unsuccessful medical treatment, and acts of negligence or medical malpractice.
Further, his allegation that the nurses and doctors at the McConnell Unit should
have immediately referred him to Hospital Galveston does not amount to
deliberate indifference.   See Estelle, 429 U.S. at 107; see also Norton v.
Dimazana, 122 F.3d 286, 292 (5th Cir. 1997). Huff has failed to show that the
defendants ignored his complaints, refused treatment, “or engaged in any
similar conduct that would clearly evince a wanton disregard for any serious
medical needs.” See Johnson, 759 F.2d at 1238. Accordingly, the magistrate
judge did not err in dismissing his claims against the defendants.



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                                  No. 12-40579

      Huff contends that the defendants denied him adequate medical care for
his infected eye in retaliation for filing grievances. Filing a grievance is a
constitutionally protected activity, and a prison official may not retaliate against
a prisoner for engaging in a protected activity. See Woods v. Smith, 60 F.3d
1161, 1164 (5th Cir. 1995). To state a retaliation claim, a prisoner must, inter
alia, “produce direct evidence of motivation” or “allege a chronology of events
from which retaliation may plausibly be inferred.”          Id. at 1166 (internal
quotation marks and citations omitted). Huff’s conclusory allegations that he
was denied medical care in retaliation is not supported by his own pleadings
which reflect that he received ongoing medical care for his infected eye
notwithstanding his complaints and grievances. Thus, the magistrate judge did
not err in denying Huff’s claim as frivolous.
      Accordingly, the judgment of the magistrate judge is affirmed. Huff’s
motion to file a supplemental brief is granted, but his motion for appointment
of counsel is denied. The magistrate judge’s dismissal of his complaint counts
as a strike for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103
F.3d 383, 385–87 (5th Cir. 1996). Huff is cautioned that if he accumulates three
strikes under § 1915(g), he may not proceed in forma pauperis in any civil action
or appeal filed while he is incarcerated or detained in any facility unless he is
under imminent danger of serious physical injury. See § 1915(g).
      AFFIRMED; MOTION TO FILE SUPPLEMENTAL BRIEF IS GRANTED;
MOTION FOR APPOINTMENT OF COUNSEL IS DENIED; SANCTION
WARNING ISSUED.




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