                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                    UNITED STATES COURT OF APPEALS
                             FIFTH CIRCUIT                     October 10, 2003

                                                           Charles R. Fulbruge III
                             No.    00-40627                       Clerk


                         JON MICHAEL WITHROW,

                                                  Plaintiff-Appellant,
                                   versus


 JOSEPH C. ROELL; JERRY BALLARD; PETRA GARIBAY; J. REAGAN, M.D.,

                                                 Defendants-Appellees.


             Appeal from the United States District Court
                  for the Southern District of Texas
                             (C-97-CV-256)


         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before JOLLY, JONES, and BARKSDALE, Circuit Judges.

PER CURIAM:*

     In 2002, we held in this pro se appeal that, without the

express written consent of the parties, a magistrate judge does not

have jurisdiction to try a civil action.        Withrow v. Roell, 288

F.3d 199, 204 (5th Cir. 2002); see 28 U.S.C. § 636(c).     The Supreme

Court reversed and remanded, holding such consent can be implied

through the parties’ conduct.       Roell v. Withrow, 123 S. Ct. 1696,

1703 (2003).      Accordingly, before us is the merits-issue not

considered in our previous decision: whether the evidence at trial

     *
      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this opinion should not be published and is not precedent except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.
was sufficient to support the jury’s finding Defendants’ care of

Plaintiff did not violate the Eighth Amendment.        AFFIRMED.

                                   I.

     This 42 U.S.C. § 1983 action by Jon Michael Withrow, Texas

prisoner # 675379, claimed Defendants — members of the prison

medical staff where he was incarcerated — violated his Eighth

Amendment rights.   Withrow claimed:     Defendants were deliberately

indifferent to his medical needs after he suffered a broken leg;

and, as a result, he was forced to undergo a complicated surgery

that left him permanently disabled.

     Withrow’s claims against Ballard were dismissed pre-trial.

The jury found for the remaining defendants (Defendants).

                                   II.

     A challenge to the sufficiency of the evidence must be raised

by a FED. R. CIV. P. 50(a) motion for judgment as a matter of law at

the conclusion of all the evidence.       E.g., Lincoln v. Case, 340

F.3d 283, 290 (5th Cir. 2003); Flowers v. S. Reg’l Physician Serv.,

247 F.3d 229, 238 (5th Cir. 2001); United States ex rel. Wallace v.

Flintco, Inc., 143 F.3d 955, 960 (5th Cir. 1998).       Withrow did not

do so.    Accordingly, “[i]f any evidence exists that supports the

verdict, it will be upheld”.       Lincoln, 340 F.3d at 290 (citing

Flowers, 247 F.3d at 238).

     Prison officials violate the Eighth Amendment’s prohibition

against   cruel   and   unusual   punishment   when   they   demonstrate


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deliberate indifference to a prisoner’s serious medical needs,

constituting an unnecessary and wanton infliction of pain.               Wilson

v. Seiter, 501 U.S. 294, 297 (1991).           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).             Unsuccessful medical

treatment,   acts   of   negligence       or   medical    malpractice,    or   a

prisoner’s disagreement with prison officials regarding medical

treatment do not constitute an unconstitutional denial of medical

care.   Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991);

Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir. 1997).

     Withrow’s claim is based substantially on his assertion that

Garibay, a nurse at the prison, mis-diagnosed him as not having a

broken ankle, which led to delay in his receiving treatment.

Garibay testified, however, that she had not diagnosed Withrow

because she was not qualified to do so.                  Therefore, evidence

supports the verdict that Garibay was not deliberately indifferent.

     Withrow also contends that the treatment by prison physician

Dr. Reagan was deliberately indifferent because Dr. Reagan refused

to send Withrow to a hospital before having his leg X-rayed,

despite knowing that no X-ray technician was available.              Withrow

testified, however, that an X-ray technician was located two hours


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later.     Therefore, evidence supports the verdict that Dr. Reagan

was not deliberately indifferent.

     Next, Withrow claims that prison physician Dr. Roell delayed

sending Withrow to the hospital because of cost concerns.                        Dr.

Roell testified, however:          he had to wait for clearance from the

hospital because it had no orthopedic beds open at the time of

Withrow’s    injury;   and   any    delay    in    treatment   was     because    of

Withrow’s stable medical condition and the treatment that already

had been rendered by the prison medical staff. Therefore, evidence

supports    the   verdict    that     Dr.    Roell    was   not      deliberately

indifferent.

     Finally,     Withrow    contends       that    his   level   of    care     was

constitutionally deficient.         The verdict is supported by evidence

of sufficient care provided him by the prison medical staff,

including X-rays, Tylenol, treatment with a splint, immobilization,

ice, and elevation.

                                      III.

     For the foregoing reasons, the judgment is

                                                                     AFFIRMED.




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