     Case: 13-50005       Document: 00512574843         Page: 1     Date Filed: 03/26/2014




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

                                                                                      FILED
                                       No. 13-50005                              March 26, 2014
                                                                                 Lyle W. Cayce
DARRYL DEWAYNE FRAZIER,                                                               Clerk


                                                  Plaintiff - Appellant
v.

UNITED STATES OF AMERICA; FEDERAL BUREAU OF PRISONS;
WARDEN M. TRAVIS BRAGG, Federal Correctional Institution La Tuna;
CHRIS SHACKS, Assistant Warden, Federal Correctional Institution La
Tuna; MS. BEST, Administrator, Federal Correctional Institution La Tuna;
LAVERNE REESE, Unit Manager, Federal Correctional Institution La Tuna;
DOCTOR ALTENBERG, Medical Director, Federal Correctional Institution
La Tuna; R SANCHEZ, Practitioner, FSL La Tuna; UTILIZATION REVIEW
COMMITTEE; JOHN/JANE DOES, in both Personal and Professional
Capacity,

                                                  Defendants - Appellees




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:11-CV-434


Before DAVIS, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*




       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 13-50005

      Darryl Dewayne Frazier, federal prisoner # 69201-080, proceeding pro se
and in forma pauperis, filed this action in January 2012 against the United
States (Government), the Bureau of Prisons (BOP), the warden of Federal
Correctional Institution La Tuna (FCI La Tuna), the La Tuna Utilization
Review Committee (La Tuna URC), and various staff members and medical
personnel at Federal Satellite Low La Tuna (FSL La Tuna) (an associated low-
security institution under the FCI La Tuna umbrella). The district court
dismissed this action. AFFIRMED; Frazier’s motions DENIED.
                                         I.
      This action arose from the denial of surgery to treat a chronic scalp
condition, diagnosed in 2000.     Frazier presented four claims:      (1) prison
personnel acted negligently and with careless disregard by denying him
surgery to save money, making the Government liable under the Federal Tort
Claims Act, 28 U.S.C. §§ 1346(b)(1), 2674 (FTCA), because (claim one); (2)
Appellees were deliberately indifferent, in violation of the Eighth Amendment,
to his medical needs and acted “in concert” to deny him surgery (claim two); (3)
Appellees engaged in a continuing tort because his scalp condition posed a
daily risk of infection (claim three); and (4) individual, nonmedical Appellees
(Bragg, Shacks, Best, and Reese) violated his First Amendment rights by
retaliating against him for filing administrative complaints and by denying
him access to the courts (claim four).
      This action was referred to a magistrate judge (MJ). On 10 January
2012, the MJ ordered officials at FCI La Tuna to provide authenticated copies
of various records from 1 November 2009 to the date of the order, including
medical, disciplinary, classification, and grievance records. In February 2012,
after the required documents had been filed, the MJ ordered service on
Appellees.

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                                No. 13-50005

      Appellees, including the Government, filed a joint motion to dismiss
claims two–four, or in the alternative, for summary judgment. The
Government separately answered claim one (FTCA).
      In his October 2012 report and recommendation, the MJ provided the
following findings. Frazier was transferred to FCI Seagoville in 2002. In 2008,
he was evaluated and treated by a dermatologist for alopecia and prescribed
an antiseptic and antibiotics. In 2009, he continued to receive treatment for
his condition; that July, a dermatologist recommended surgical excision by a
plastic surgeon and a plastic-surgery consultation was initiated.         That
November, Frazier was seen again by a dermatologist, who prescribed
medications and recommended surgical excision by a plastic or general
surgeon. Again, a plastic-surgery consultation was initiated.
      Prior to a decision regarding surgery being made, Frazier was
transferred to FSL La Tuna. In April 2010, Appellee Dr. Altenberg (La Tuna
clinical director and URC chair) reviewed the consultation and recommended
denying surgery because it was not medically necessary and the risks
outweighed the benefits. La Tuna URC followed this recommendation and
denied surgery. Medical staff at La Tuna treated Frazier with antibiotics,
prescription shampoos, oral medication, and steroid injections.
      Following a medication-ineffectiveness complaint in July 2010, a plastic-
surgery consultation was initiated, but disapproved by La Tuna URC. After
an October 2010 assessment, a dermatology consultation was initiated and
later disapproved by La Tuna URC (after determining the consultation was
cosmetic in nature).
      In November 2011, Frazier was transferred from FSL La Tuna to the
adjacent FCI La Tuna. Frazier continued to receive treatment with antibiotics,



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                                  No. 13-50005

prescription shampoo, and steroids, although medications were periodically
adjusted.
      Based on these findings, the MJ recommended dismissing claims two–
four because: the district court lacked subject matter jurisdiction for Frazier’s
claims against the Government and individual Appellees in their official
capacities; Bragg, Shacks, Best, and Reese were not personally involved in
Frazier’s medical treatment, nor did they implement the relevant policies
(moreover, Frazier failed to establish Appellees acted with deliberate
indifference to a serious medical need); the continuing-tort doctrine was
inapplicable;   and,   finally,   summary-judgment     evidence    demonstrated
Appellees had not interfered with Frazier’s mail, given that he was able to both
exhaust his administrative remedies and file numerous papers in this action.
On the other hand, the MJ recommended claim one (FTCA) be allowed to
proceed.
      Frazier objected to the report and recommendation. On the other hand,
he did not dispute the findings; instead, he insisted they supported his claims.
Additionally, he claimed, inter alia, he was not given an opportunity “to obtain
depositions, interrogatories, and any other discovery in [this] case”. (Frazier
failed to suggest, however, what additional discovery would disclose.)
      In a 30 October 2012 order, the district court overruled Frazier’s
objections, accepted the report and recommendation, and focused on whether
Appellees were entitled to judgment as a matter of law (in the light of Frazier’s
concurrence with the MJ’s findings). Order Adopting Rep. and Recommenda-
tion for Mot. to Dismiss, Mot. for Summ. J. at *15–16, Frazier v. United States,
No. 3:11-CV-434 (W.D. Tex. 30 Oct. 2012). Regarding claim two (deliberate
indifference), the court ruled it lacked jurisdiction to address claims against
the Government, BOP, and La Tuna URC. Id. at *12–14. Moreover, Frazier’s

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                                  No. 13-50005

assertions were, at most, “a disagreement over his treatment” and as such
could not support an Eighth Amendment claim. Id. at *13. Because individual
Appellees’ actions did not amount to a constitutional violation, they were
entitled to qualified immunity. Id. at *14. For claim three (continuing tort),
the court ruled the statute of limitations was not an issue because Frazier
timely filed his complaint; therefore, the continuing-tort doctrine was
inapplicable. Id. at *14–15. Finally, for claim four (access to courts), the court
ruled Frazier failed to demonstrate error in the report-and-recommendation’s
analysis. Id. at *15.
      Accordingly, the court ruled Appellees were entitled to judgment as a
matter of law on claims two–four. Id. For the remaining claim (FTCA), for
which the Government was the sole defendant, the court ordered it and Frazier
to submit dispositive motions. Id. at *16. Additionally, the district court
ordered Frazier to:
              DISCLOSE to the Court and the Government no later
              than [16 November 2012] the identity of any witness
              he may use to present evidence under Federal Rule of
              Evidence 702, 703, or 705, and to provide to the Court
              and the Government the written report of any
              witnesses retained or specially employed to provide
              expert testimony at a bench trial . . . .
Id. at *17.
      In response, on 13 November 2012, Frazier submitted a potential-
witnesses list, in which he noted:     “At the present time Plaintiff has not
retained or specifically employed any expert witness, and is currently awaiting
the response from potential expert witness, Warren Kelly [sic], a licensed and
certified Dermatologist in Seagoville, Texas.”
      On 16 November 2012, the Government filed a motion to dismiss or,
alternatively, for summary judgment, claiming:             Texas provided the
substantive law underlying liability for the FTCA claim, see 28 U.S.C.
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                                  No. 13-50005

§ 1346(b)(1); for a medical-malpractice claim, plaintiff must have a medical
expert identify specifically the relevant standard of care in order to raise a fact
issue sufficient to defeat summary judgment; Frazier failed to establish his
injuries were proximately caused by a breach of that standard of care because
he did not provide expert medical evidence; as a result, he could not show the
Government caused his alleged injuries; and, accordingly, he could not survive
summary judgment. In support, the Government provided the affidavit of Dr.
Charles Adams, a non-BOP physician, who, after reviewing Frazier’s medical
records, concluded his treatment conformed to all applicable standards of care.
      Frazier opposed the motion, primarily by claiming Dr. Warren’s
diagnosis (attached to his complaint) established the essential elements of his
claim. Frazier also maintained he met his burden of proof because he had
informed the court he was awaiting an affidavit from Dr. Warren (although he
did not request a continuance). Lastly, Frazier contended: he had never been
examined by Dr. Adams; and the record did not indicate whether he was a
certified dermatologist.
      In a subsequent 3 December 2012 order, the district court ruled Texas
law applied because the alleged malpractice took place in Texas. Order
Granting Mot. for Summ. J. at *6–7, Frazier v. United States, No. 3:11-CV-434
(W.D. Tex. 3 Dec. 2012). Citing Texas law, the court noted expert testimony
was required because the mode or form of treatment for Frazier’s condition was
“not a matter of common knowledge or within the experience of the Court”. Id.
at *9. The court considered and discussed Frazier’s documentation relating to
Dr. Warren, in which he “cited options including . . . bactrim . . . , Accutane,
and surgery (The most definitive treatment is surgical [excision] to be done by
plastic surgery or general surgery) to remedy [the] condition”. Id. (internal
quotation marks omitted).       The court ruled this documentation did not

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                                   No. 13-50005

“support Frazier’s assertion . . . that his ‘serious medical condition . . . [could]
only be treated with general surgery’”. Id. (emphasis by district court). Based
on the record, the court could “only agree with the Government that Frazier
has failed to support his allegations with any expert medical evidence or
testimony”. Id. at *10.      Accordingly, the court granted the Government’s
summary-judgment motion, based on Frazier’s failure to establish the
essential elements of his claim. Id.
                                        II.
        At issue are whether the district court erred: by dismissing Frazier’s
claim that Appellees were deliberately indifferent to his medical needs due to
disputed issues of material fact regarding impermissible motive; in, according
to Frazier, applying Texas medical-malpractice law to Frazier’s FTCA claim
and dismissing the claim without inquiry pursuant to United States v. Gaubert,
499 U.S. 315, 322–25 (1991) (Frazier raises Gaubert for the first time on
appeal; it provides a two-part test for determining whether the discretionary-
function exception applies once invoked by Government); by failing to allow
Frazier, pursuant to Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993),
to challenge the evidence provided by Dr. Adams; and by failing to grant a
continuance for Frazier to conduct discovery and secure an expert witness.
        In addition to these issues, in July 2013, Frazier filed motions with this
court to strike the footnotes, and order Appellees to correct page citations, in
their brief, as well as to impose sanctions. The motions were carried with the
case.
                                        III.
        Frazier’s motions are DENIED. Essentially for the reasons stated by
district court in its well-reasoned orders, the judgment is AFFIRMED.



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