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

                                                                  FILED
                                                               February 12, 2009
                                No. 08-10062
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk
SHELBY WAYNE FIFE

                                           Plaintiff-Appellant

v.

NFN HENSLEY, Health and Medical Administrator; SHANE MARTINEZ,
Health and Medical Administrator; BEN LUONG, Physician-Medical Director,
Preston E. Smith Unit

                                           Defendants-Appellees


                 Appeal from the United States District Court
                      for the Northern District of Texas
                            USDC No. 5:06-CV-203


Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
      Plaintiff-Appellant Shelby Wayne Fife, formerly Texas prisoner # 1039740,
appeals the district court’s grant of summary judgment for the defendants and
dismissal of his 42 U.S.C. § 1983 complaint. Fife alleged that the defendants
were deliberately indifferent to his serious medical needs following an allegedly
botched surgery on his left foot.




      *
      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should not be published and is not precedent except under the limited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.
                                  No. 08-10062

      As an initial matter, Fife’s motion to supplement the record on appeal is
denied. See United States v. Flores, 887 F.2d 543, 546 (5th Cir. 1989). The
district court did not abuse its discretion by denying Fife’s motion to supplement
his complaint with claims of retaliation and harassment by the defendants, so
we too decline to consider these claims in this appeal. See Burns v. Exxon Corp.,
158 F.3d 336, 343 (5th Cir. 1998); Leverette v. Louisville Ladder Co., 183 F.3d
339, 342 (5th Cir. 1999)
      We review the grant of a motion for summary judgment de novo.
Threadgill v. Prudential Sec. Group, Inc., 145 F.3d 286, 292 (5th Cir. 1998).
Summary judgment is appropriate if the record discloses “that there is no
genuine issue as to any material fact and that the movant is entitled to
judgment as a matter of law.” FED. R. CIV. P. 56(c).
      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.” Wilson v. Seiter, 501 U.S. 294, 297 (1991) (internal quotation
marks 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). A mere disagreement with one’s
medical treatment is not sufficient to state a cause of action under § 1983.
Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991). Further, unsuccessful
medical treatment, negligence, or medical malpractice are insufficient to give
rise to a claim of deliberate indifference. Id.
      The district court did not err in granting summary judgment because
Hensley and Martinez were not deliberately indifferent: Fife received surgery
on both of his feet; he was referred for evaluation of a possible corrective second
surgery for his left foot; he obtained custom orthopedic shoes to help alleviate his

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                                  No. 08-10062

condition; he was seen by the medical department personnel on numerous
occasions; and he received various pain medications. Given the extremely
limited authority of Hensley and Martinez to affect patient care directly, their
actions do not show they acted with deliberate indifference to Fife’s serious
medical needs.
      Neither did the district court err when it granted summary judgment in
favor of Dr. Luong because he was not deliberately indifferent either. Dr. Luong
saw Fife on a number of occasions and prescribed various medications for him.
Although Dr. Luong did not immediately refer Fife for corrective surgery and
initially refused to grant Fife a pass to wear his orthopedic shoes, the records
indicate that Dr. Luong justified his decisions on the basis of medical necessity.
Furthermore, Dr. Luong did eventually refer Fife for evaluation of possible
corrective surgery. To the extent that Dr. Luong’s medical opinions differed from
those of Fife or other medical providers, such a difference of opinion does not
give rise to a claim of deliberate indifference. See Varnado, 920 F.2d at 321;
Gobert v. Caldwell, 463 F.3d 339, 350 n. 32 (5th Cir. 2006).
      AFFIRMED; MOTION DENIED.




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