     Case: 17-60248      Document: 00514747729         Page: 1    Date Filed: 12/04/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fifth Circuit
                                      No. 17-60248                          FILED
                                                                    December 4, 2018

THOMAS E. CAMPBELL,                                                    Lyle W. Cayce
                                                                            Clerk
              Plaintiff - Appellant

v.

ANGELA BROWN, Nurse Practitioner; EARNEST LEE, Superintendent;
MR. PAIGE, Officer; MR. BANKS, Warden; WARDEN MORRIS; OFFICER
HODGES,

              Defendants - Appellees


                   Appeal from the United States District Court
                         Northern District of Mississippi
                              USDC No. 1:15-CV-35


Before STEWART, Chief Judge, and KING and OWEN, Circuit Judges.
PER CURIAM:*
       Thomas E. Campbell appeals the summary judgment dismissal of his 42
U.S.C. § 1983 action. For the following reasons, we affirm.
                          I. Facts & Procedural History
       Campbell, Mississippi prisoner # 62117, filed a verified § 1983 complaint
naming as defendants nurse practitioner Angela Brown, Superintendent
Ernest Lee, Officer Jeremy Paige, and Warden Wendell Banks, all employees


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-60248

of the Mississippi Department of Corrections. In an amended filing, Campbell
added a claim of excessive force against correctional officer Hodges. Later, he
also joined another warden, Morris, as a defendant. Campbell alleged in his
complaint that the defendants were deliberately indifferent to his medical
needs in relation to various neck, back, leg, foot, hemorrhoid, and weight loss
problems and that they used excessive force in treating him.
       The defendants moved for summary judgment and presented more than
1,500 pages of Campbell’s prison medical records to rebut his claims against
them. In light of the evidence presented, the district court granted summary
judgment for the defendants. The district court dismissed the claims against
Lee, Banks, and Morris because their liability was predicated solely on their
roles as supervisors. The court also dismissed the claims against Brown, Paige
and Hodges determining that the evidence wholly failed to show deliberate
indifference to Campbell’s medical needs or a triable issue as to excessive force.
Campbell filed a timely notice of appeal. 1
                               II. Standard of Review
       As a preliminary matter, we affirm the judgments for Lee, Banks,
Morris, and Hodges because Campbell does not challenge the dismissal of his
claims against those defendants. See Brinkmann v. Dall. Cty. Deputy Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987) (“We will not raise and discuss legal
issues that [the defendant] has failed to assert.”); Grant v. Cuellar, 59 F.3d
523, 524 (5th Cir. 1995) (“Although we liberally construe briefs of pro
se litigants and apply less stringent standards to parties proceeding pro
se than to parties represented by counsel, pro se parties must still brief the
issues and reasonably comply with the standards of [Federal Rule of Appellate



       1 On appeal, Campbell also moves for the appointment of counsel, for monetary relief,
and for an extension of time to file a reply brief.

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Procedure] 28.”). As to the claims against Brown and Paige, we review the
summary judgment de novo, viewing the evidence in the light most favorable
to Campbell, and will affirm “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a); McFaul v. Valenzuela, 684 F.3d 564, 571
(5th Cir. 2012); Carnaby v. City of Hous., 636 F.3d 183, 187 (5th Cir. 2011).
                               III. Discussion
Deliberate Indifference to Serious Medical Needs
      It is “clearly established” that deliberate indifference to the serious
medical needs of prisoners constitutes a violation of the Eighth Amendment
remediable under 42 U.S.C. § 1983. Gobert v. Caldwell, 463 F.3d 339, 345 (5th
Cir. 2006); see Estelle v. Gamble, 429 U.S. 97, 104 (1976).           An Eighth
Amendment claim based on inadequate medical care requires a two-fold
showing. Gobert, 463 F.3d at 345. First, the plaintiff must show that the
deprivation of medical care resulted in his “objective exposure to a substantial
risk of serious harm,” id., defined as harm “so grave that it violates
contemporary standards of decency to expose anyone unwillingly to such a
risk.” Helling v. McKinney, 509 U.S. 25, 36 (1993). Second, the plaintiff must
demonstrate that “prison officials acted or failed to act with deliberate
indifference to that risk.” Gobert, 463 F.3d at 345–46.
      Deliberate indifference “is a stringent standard of fault.” Connick v.
Thompson, 563 U.S. 51, 61 (2011) (internal quotation marks and citation
omitted). In the medical context, it is met only when the evidence shows that
prison officials knew that an inmate faced a substantial risk of serious bodily
harm and recklessly disregarded that risk by failing to take reasonable
measures to abate that harm. See Gobert, 463 F.3d at 346. Mere negligence
in diagnosing or treating a medical condition does not amount to deliberate


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indifference. Gamble, 429 U.S. at 106; see, e.g., Domino v. Tex. Dep’t of
Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001) (holding that an incorrect
diagnosis does not amount to deliberate indifference); Varnado v. Lynaugh,
920 F.2d 320, 321 (5th Cir. 1991) (holding that unsuccessful medical treatment
does not amount to deliberate indifference). Nor does a prisoner’s disagreement
with a particular course of treatment or a doctor’s professional decision not to
pursue additional treatment options. See Stewart v. Murphy, 174 F.3d 530, 537
(5th Cir. 1999); Domino, 239 F.3d at 756.
      A. Hemorrhoids
      According to Campbell, his hemorrhoids caused him significant pain and
discomfort throughout his time in the defendants’ custody and care. He claims
that he was given incorrect and inadequate medications to treat his condition
and that he should have been treated surgically.
      The medical staff’s decision of whether to provide certain treatment—
here, the decision to treat Campbell’s hemorrhoids medically and not
surgically—“is a classic example of a matter of medical judgment.” Gobert, 463
F.3d at 346. In any event, the competent summary judgment evidence does
not show that Brown played any role in the decision not to perform surgery.
Moreover, to the extent Campbell contends that Brown’s treatment of his
hemorrhoids was otherwise lacking, he merely disagrees with her professional
decision-making or, at best, shows that she was negligent, neither of which
amounts to deliberate indifference. See Gamble, 429 U.S. at 106; Stewart, 174
F.3d at 537.
      B. Neck, Back, Leg, and Foot Conditions
      Turning to Campbell’s claim regarding the treatment of his neck, back,
leg, foot and weight loss conditions, he alleges that: (1) prison medical staff
refused to perform necessary neck surgery on him; (2) his medications and


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prescribed “snack bags” 2 were either withheld or delayed; (3) he was denied
“lay-in” or bedrest; (4) staff refused to treat his leg and arm rash; and (5) he
was injected with Haldol 3 despite being allergic to it.
      Although Campbell claims that prison medical staff waited more than
20 months to perform surgery to correct two herniated discs in his neck, the
undisputed medical records reveal that he did not agree to undergo surgery
when it was first recommended in May 2013. He did not inquire about neck
surgery again until February 2015 and he never discussed surgery with Brown.
Thus, his neck surgery “was delayed because of [Campbell’s] own desire to
avoid surgery,” not due to deliberate indifference. See Willis v. Whitley, 4 F.3d
991 (5th Cir. 1993).
      Campbell does not implicate Brown in his claims that medical staff
delayed or refused to dispense various prescribed medications or to provide
him with prescribed supplemental nutrition “snack bags,” thus, he fails to
show a genuine dispute as to whether any claimed harm is traceable to Brown’s
deliberate indifference. See Fed. R. Civ. P. 56(a); Gobert, 463 F.3d at 345–46;
Helling, 509 U.S. at 36.
      Campbell contends that Brown denied his request for a “lay-in” to rest
his legs and feet and refused to treat a rash on his legs and arms. The record
indicates that Brown expressed that bedrest was not medically necessary since
Campbell had not had surgery and that the rash on his legs had been caused
by his compression socks, which she had given him in lieu of bedrest. Campbell
merely disagrees with Brown’s particular course of treatment and fails to
allege or cite evidence showing that her conduct in either instance objectively




      2   “Snack bags” are supplemental nutrition that can be prescribed to prisoners.
      3   Haldol is an antipsychotic medicine used to help reduce aggression.

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exposed him to a substantial risk of serious harm. See Stewart, 174 F.3d at
537; Gobert, 463 F.3d at 345.
      As to Campbell’s complaint that Brown had him injected with Haldol, to
which he is allergic, there is no factual basis for concluding that Brown did so
“with knowledge that [he] was allergic.” Gamble, 429 U.S. at 104 n.10. The
evidence reflects that prior to injection, Brown consulted Campbell’s medical
records which stated that he was not allergic to Haldol. Moreover, Brown
received Campbell’s consent prior to giving him the injection. In so doing, she
did not “clearly evince a wanton disregard for any serious medical needs.”
Domino, 239 F.3d at 756.
Excessive Force
      To prevail on his claim of excessive force, Campbell must establish
“(1) injury, (2) which resulted directly and only from a use of force that was
clearly excessive, and (3) the excessiveness of which was clearly unreasonable.”
Tarver v. City of Edna, 410 F.3d 745, 751 (5th Cir. 2005). In determining
whether a plaintiff has made an allegation of excessive force sufficient to
overcome summary judgment, this court evaluates five nonexclusive factors:
“(1) the extent of the injury suffered; (2) the need for the application of force;
(3) the relationship between that need and the amount of force used; (4) the
threat reasonably perceived by the responsible officials; and (5) any efforts
made to temper the severity of a forceful response.” Baldwin v. Stalder, 137
F.3d 836, 839 (5th Cir. 1998).
      Campbell contends that Brown used excessive force when she “raped”
him by conducting a rectal examination in response to his complaint of
hemorrhoids and that Paige used excessive force when he restrained Campbell
so that Brown could perform the exam. The medical records reflect that




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Campbell screamed while Brown performed the rectal exam in response to his
complaint of hemorrhoids.
      Although the evidence reveals that Campbell was in pain during his
rectal exam, he neither asserts nor shows that the force applied by either
defendant was clearly and unreasonably excessive relative to the need to use
such force. See Tarver, 410 F.3d at 751. Further, as the district court properly
concluded, Campbell’s allegation that Brown’s performance of a routine rectal
exam amounted to rape is simply implausible. See Deshotel v. Wal-Mart La.,
L.L.C., 850 F.3d 742, 746 (5th Cir. 2017).
      In light of the foregoing evidence, Brown and Paige are entitled to
judgment as a matter of law on Campbell’s claims of deliberate indifference to
serious medical needs and excessive force. See Fed. R. Civ. P. 56(a); McFaul,
684 F.3d at 571.
                               IV. Conclusion
      We affirm the district court’s summary judgment as to all defendants.
All pending motions are denied.




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