     Case: 12-40543       Document: 00512327691          Page: 1     Date Filed: 07/31/2013




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

                                                                             FILED
                                                                            July 31, 2013
                                     No. 12-40543
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

DARRON MORGAN,

                                                   Plaintiff-Appellant

v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE MCCONNELL UNIT;
MAXIMILLIANO HERRERA; REFUGIA CAMPOS; “JOHN DOE” WOLF;
WILLIAM BURGIN,

                                                   Defendants-Appellees


                   Appeals from the United States District Court
                        for the Southern District of Texas
                              USDC No. 2:11-CV-124


Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Darron Morgan, proceeding pro se, appeals the denial of his complaint
against various prison officials and physicians for their alleged deliberate
indifference to his medical needs in violation of the Eighth Amendment’s
prohibition on cruel and unusual punishment. Morgan challenges the grant of
summary judgment in favor of defendants Dr. Herrera and William Burgin and


       *
        Pursuant to Fifth Circuit Rule 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not be published and is not precedent except under the limited circumstances set forth in Fifth
Circuit Rule 47.5.4.
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the dismissal of his claim against another physician, Dr. Wolf, pursuant to Rule
12(b)(6). He also challenges the denial of his motions for the appointment of
counsel and to compel discovery, and moves for leave to amend a supplemental
brief.    We GRANT leave to file the supplemental brief and AFFIRM the
judgment below in part and DISMISS the appeal in part.


                                         I.
                                         A.
         Darron Morgan, Texas prisoner # 640157, brought the present civil action
against the Texas Department of Criminal Justice McConnell Unit, Dr. Herrera,
Nurse Campos, Dr. Wolfe, and William Burgin, pursuant to 42 U.S.C. § 1983 and
the Prison Litigation Reform Act (PLRA), id. § 1997e et seq. While Morgan was
imprisoned at the McConnell Unit, he complained of congestion, nasal drip, and
a runny nose to prison officials in April of 2009. He was diagnosed as suffering
from asthma and allergy symptoms. Campos examined Morgan and prescribed
the antihistamine chlorphen. While taking the chlorphen, Morgan alleges that
his nose began bleeding and developed sores. When Morgan complained about
the problem, Dr. Wolfe saw him, and she prescribed a double antibiotic cream
to apply to the sores in his nose. While Dr. Wolfe prescribed the antibiotic
cream, Dr. Herrera’s name was on the medication pass authorizing Morgan to
obtain it.
         The double antibiotic cream healed the sores in Morgan’s nose, but Morgan
alleges that he began experiencing adverse side effects, including losing his
hearing, balance, and sense of smell. Morgan also alleges that he suffered from
ulcers in his mouth and throat, and a rash that developed on his face. The
defendants dispute that those symptoms were side-effects of their treatment
and, in support, offer the expert testimony of a physician who opined that those
symptoms arose from Morgan’s underlying conditions that the medicines were
intended to treat. Morgan states that unidentified medical personnel at

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McConnell prescribed triamcinolone cream and an antibiotic for the rash, but his
symptoms did not improve. Dr. Wolfe also prescribed Kenalog injections over a
six-month period. According to Morgan, he made a sick call request to Dr.
Herrera after returning from the hospital. When Dr. Herrera examined Morgan,
Dr. Herrera allegedly told him that he had damage to his alimentary canal that
was not treatable. Due to the damage to the alimentary canal, Morgan says he
was not able to produce mucous, causing Morgan considerable pain. The
defendants offered evidence that Morgan was suffering from those symptoms
before he was treated by prison physicians and asserted that Morgan’s
allegations as to damage to his alimentary canal had no basis in fact.
      Morgan complained of red spots and sores between January 2011 and
April 2011. During the relevant time period, McConnell was on semi-lockdown,
and he missed multiple medical appointments during this time period because
a security escort was not available. Due to this problem, Burgin referred
Morgan and all other administrative segregation inmates with medical problems
to be seen by medical staff at their cells. Morgan alleges that Burgin, the
medical grievances manager, did not schedule the appointments, an allegation
that the defendants also dispute. Morgan was seen in his cell for his skin
condition by a nurse on February 3, 2011, based upon Burgin’s referral, and the
nurse referred Morgan to a mid-level practitioner. Morgan was ultimately seen
by a physician’s assistant in April of 2011, diagnosed with having lice and a
rash, and prescribed medication.      Burgin was the practice manager at
McConnell who was responsible for responding to inmate grievances regarding
medical care. Burgin was not licensed to practice medicine and had no medical
training.   This evidence was uncontradicted by Morgan in the summary
judgment record.
      The record reflects that Morgan filed a number of grievances with Burgin
complaining of the foregoing ailments and the alleged insufficiency of his
medical treatment.

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                                       B.
      Morgan filed the present § 1983 suit alleging the violation of his Eighth
Amendment right to be free from cruel and unusual punishment. The case was
initially referred to a Magistrate Judge (MJ), who recommended that Morgan’s
claims against McConnell and Morgan’s official-capacity claims against the
defendants be dismissed based upon sovereign and Eleventh Amendment
immunity. She further recommended that Morgan’s claims against Campos and
Dr. Wolfe be dismissed for failure to state a claim upon which relief may be
granted. The district court adopted the MJ’s report and recommendation and
dismissed Morgan’s claims against McConnell, Morgan’s official capacity claims
against the defendants, and Morgan’s claims against Campos and Dr. Wolfe.
Morgan filed two motions for appointment of counsel and various motions to
compel discovery. The MJ denied all of the motions.
      Dr. Herrera and Burgin then moved for summary judgment, arguing that
Morgan had failed to exhaust his administrative remedies because the four
prison grievances he had filed relating to his medical conditions did not mention
Dr. Herrera or Burgin and did not detail his claims against them. The prison
records they filed in support of this claim, however, indicated that Morgan had
filed a fifth prison grievance that had been misplaced by prison authorities. Dr.
Herrera and Burgin also sought summary judgment on the basis of qualified
immunity and on the merits of Morgan’s claims.
      The MJ recommended that Dr. Herrera and Burgin be granted summary
judgment because Morgan had not exhausted his administrative remedies and
because they were entitled to qualified immunity.         Morgan filed a timely
objection challenging the MJ’s recommendation and the MJ’s denial of his
motions for appointment of counsel. The district court overruled Morgan’s
objections, adopted the report and recommendation of the MJ, and granted
summary judgment in favor of Dr. Herrera and Burgin. Morgan filed a timely
notice of appeal.

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                                        II.
      The district court had jurisdiction pursuant to 28 U.S.C. § 1332. We have
jurisdiction to review the final orders of the district court. Id. § 1291. Morgan
timely filed objections and a notice of appeal from the district court’s orders
granting the defendants’ motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6). However, Morgan did not object to or seek district court
review of the MJ’s orders denying his motions to compel discovery. We therefore
lack jurisdiction to consider Morgan’s argument that the MJ erred by denying
his motions to compel. See Singletary v. B.R.X., Inc., 828 F.2d 1135, 1137 (5th
Cir. 1987) (holding that this court did not have jurisdiction to consider challenge
to a magistrate judge’s discovery ruling because party did not seek review in the
district court); see also Fed. R. Civ. P. 72(a). Accordingly, that portion of
Morgan’s appeal is dismissed. See United States v. Renfro, 620 F.2d 497, 500
(5th Cir. 1980). We have jurisdiction over the remaining claims on appeal.


                                        III.
      On appeal, Morgan challenges only the dismissal of his Eighth
Amendment deliberate indifference claims against Dr. Wolfe under Rule 12(b)(6)
and against Dr. Herrera and Burgin under Rule 56. In Estelle v. Gamble, 429
U.S. 97 (1976), the Supreme Court recognized that the Eighth Amendment
requires the government to provide medical care to inmates because the failure
to do so “may actually produce physical ‘torture or a lingering death’” or
unnecessary “pain and suffering.” Id. at 103 (citation omitted).        “[A] prison
official may be held liable under the Eighth Amendment for denying humane
conditions of confinement only if he knows that inmates face a substantial risk
of serious harm and disregards that risk by failing to take reasonable measures
to abate it.” Farmer v. Brennan, 511 U.S. 825, 847 (1994).
      To prevail on such a claim, a § 1983 “claimant need not show that a prison
official acted or failed to act believing that harm actually would befall an inmate;

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it is enough that the official acted or failed to act despite his knowledge of a
substantial risk of serious harm.” Id. at 842. “Whether a prison official had the
requisite knowledge of a substantial risk is a question of fact subject to
demonstration in the usual ways, including inference from circumstantial
evidence, and a factfinder may conclude that a prison official knew of a
substantial risk from the very fact that the risk was obvious.” Id. at 842
(citations omitted); see also, e.g., Gates v. Cook, 376 F.3d 323, 333 (5th Cir. 2004)
(same); Brown v. Bolin, 500 F. App’x 309, 318-19 & n.5 (5th Cir. 2012)
(unpublished) (Dennis, J., concurring in part and dissenting in part) (same)
(collecting cases), cert. denied, No. 12-1257, 2013 WL 1703411 (June 17, 2013).
A trier of fact may infer that a § 1983 defendant had knowledge of the risk if the
risk was obvious, for instance, if the evidence shows that a doctor or other prison
official “knows that some diseases are communicable and that a single needle is
being used to administer flu shots to prisoners but refuses to listen to a
subordinate who he strongly suspects will attempt to explain the associated risk
of transmitting disease[.]” Farmer, 511 U.S. at 843-44 & n.8.
      “[A]lthough inadequate medical treatment may, at a certain point, rise to
the level of a constitutional violation, malpractice or negligent care does not.”
Stewart v. Murphy, 174 F.3d 530, 534 (5th Cir. 1999) (collecting cases); see also,
e.g., Farmer, 511 U.S. at 835 (“[D]eliberate indifference describes a state of mind
more blameworthy than negligence.”). Thus, a defendant must show that “the
claimed independent acts of negligence by each physician were . . . sufficient to
raise a material fact issue that each doctor knew that his acts or omissions
subjected [the defendant] to an excessive risk of harm, yet responded to the risk
with deliberate indifference.” Stewart, 174 F.3d at 537.


                                         A.
      First, Morgan challenges the dismissal of his claims against Dr. Wolfe for
failure to state a claim upon which relief may be granted pursuant to 28 U.S.C.

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§§ 1915(e)(2)(B) and 1915A(b)(1), a ruling we review de novo, see Ruiz v. United
States, 160 F.3d 273, 275 (5th Cir. 1998).
      Morgan did not allege that Dr. Wolfe refused to treat him or delayed
treating him. Instead, he alleged that Dr. Wolfe provided incorrect or negligent
treatment by prescribing ongoing Kenalog injections despite their alleged side
effects and by directing him to use double antibiotic cream on internal nose sores
when the cream had allegedly only been approved for external use. While
prescribing incorrect treatments or treatments that cause serious side effects
might amount to malpractice,1 this allegation, without a further showing of
deliberate indifference to serious medical needs, does not rise to the level of a
constitutional violation. A prison physician’s negligence or malpractice cases
does not typically rise to the level of cruel and unusual punishment within the
meaning of the Eighth Amendment. See, e.g., Stewart, 174 F.3d at 534; see also
Farmer, 511 U.S. at 835. The allegations that the FDA did not approve the
alleged off-label use of this antibiotic cream or that Dr. Wolfe violated
professional standards of care in administering either treatment are not enough
to give rise to a constitutional violation absent allegations of deliberate
indifference to Morgan’s medical needs. Morgan does not allege or point to
circumstances that would suggest that Dr. Wolfe prescribed the antibiotic cream
with knowledge that the cream would pose “a substantial risk of serious harm,”
or that such a risk would have been obvious, and that Dr. Wolfe “disregard[ed]
that risk by failing to take reasonable measures to abate it.” Farmer, 511 U.S.
at 847; see id. at 843-44 & n.8. We therefore affirm the dismissal of Morgan’s
claims against Dr. Wolfe.




      1
        The defendants offered the expert testimony of a physician who opined that the
defendants did not violate the standard of care in their treatment of Morgan’s various
symptoms.

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                                       B.
      Morgan next argues that the district court erred by granting summary
judgment to Dr. Herrera and Burgin. We review de novo a district court’s grant
of summary judgment under the usual standard. Nickell v. Beau View of Biloxi,
L.L.C., 636 F.3d 752, 754 (5th Cir. 2011). Summary judgment is proper when
the pleadings, depositions, admissions, and answers to interrogatories, together
with affidavits, demonstrate that no genuine issue exists as to any material fact
and that the movant is entitled to judgment or partial judgment as a matter of
law. Fed. R. Civ. P. 56(a).


                                       1.
      As an initial matter, Dr. Herrera and Burgin argue that Morgan’s claim
was untimely exhausted. Morgan responds that he exhausted his administrative
remedies and that he raised claims against Burgin in the prison grievance that
was misplaced by prison officials. Congress enacted the PLRA “[i]n an effort to
address the large number of prisoner complaints filed in federal court . . . .
Among other reforms, the PLRA mandates early judicial screening of prisoner
complaints and requires prisoners to exhaust prison grievance procedures before
filing suit.” Jones v. Bock, 549 U.S. 199, 202 (2007) (citing 28 U.S.C. § 1915A;
42 U.S.C. § 1997e(a)).        The requirement that plaintiffs exhaust their
administrative remedies under the PLRA is an affirmative defense. Id. at 216.
As such, the burden is on the defendants to prove that a plaintiff failed to
exhaust his administrative remedies. See Dillon v. Rogers, 596 F.3d 260, 266
(5th Cir. 2010).
      The summary judgment evidence presented by Dr. Herrera and Burgin
reflects that Morgan had filed a prison grievance during the relevant time period
that prison officials could not locate or produce.     Morgan alleges that he
exhausted his administrative remedies regarding some of his claims in that
grievance. As Dr. Herrera and Burgin did not show “beyond peradventure all

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of the essential elements of the defense of exhaustion,” they were not entitled to
summary judgment on exhaustion grounds. Id. However, “we may affirm a
grant of summary judgment on any ground supported by the record, even if it is
different from that relied upon by the district court.” Janvey v. Democratic
Senatorial Campaign Comm., Inc., 712 F.3d 185, 193 (5th Cir. 2013). We
therefore turn to the merits of the defendants’ motion for summary judgment.


                                        2.
      Dr. Herrera and Burgin assert that they are entitled to qualified immunity
as to Morgan’s deliberate indifference claim.        “The doctrine of qualified
immunity protects government officials from liability from civil damages insofar
as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Rockwell v. Brown, 664
F.3d 985, 990-91 (5th Cir. 2011), cert. denied, 132 S. Ct. 2433 (2012) (quoting
Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks
omitted)). When, as here, the defendants have asserted qualified immunity in
a summary judgment motion, “the burden then shifts to the plaintiff, who must
rebut the defense by establishing a genuine fact issue as to whether the official’s
allegedly wrongful conduct violated clearly established law.” Brown v. Callahan,
623 F.3d 249, 253 (5th Cir. 2010). “Therefore, the qualified-immunity inquiry
has two prongs: (1) whether an official’s conduct violated a constitutional right
of the plaintiff, and (2) whether that right was clearly established at the time of
the violation. A court may rely on either prong of the defense in its analysis.”
Rockwell, 664 F.3d at 990-91 (citations and quotation marks omitted).
      Morgan claims that Dr. Herrera prescribed or approved the prescription
of double antibiotic cream for internal use, and that Dr. Herrera told Morgan
that his alimentary canal was damaged and that nothing could be done about it.
For the reasons set forth above, Morgan has failed to allege a constitutional
violation arising from his physicians’ instructions that he use the cream, much

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less that Dr. Herrera, whose name only appeared on the prescription form as the
prescribing doctor, was aware of any serious risk to Morgan’s health or safety
that would be posed by such off-label use of the medicine. Likewise, the
summary judgment record did not reflect that Dr. Herrera ever examined
Morgan or that he had any reason to believe that his alimentary canal had been
damaged. Accordingly, Morgan has not demonstrated that Dr. Herrera violated
his clearly established constitutional right against deliberate indifference in his
medical care. We therefore affirm the grant of summary judgment in Dr.
Herrera’s favor on grounds of qualified immunity.
      With respect to Morgan’s claim against Burgin, Morgan offered evidence
that he complained to Burgin about red spots or sores all over his body but did
not receive treatment until months later. He contends that Burgin could have
ensured that he received treatment because Burgin sent a nurse to see him in
his cell, and the nurse did not provide treatment, and that Morgan did not
receive treatment on site at the clinic due to a lack of security personnel to
transport him to prison medical facilities. However, the summary judgment
record reflects that Burgin responded to Morgan’s grievances and arranged for
Morgan to see a Dr. Stein on the premises.2
      A defendant may not be held liable under § 1983 pursuant to a theory of
respondeat superior, but may be held liable for his or her role in a constitutional
violation premised on the defendant’s individual conduct as a supervisor, for
example, his or her failure to train. See Cozzo v. Tangipahoa Parish
Council–President Gov’t, 279 F.3d 273, 286-87 (5th Cir. 2002). Here, however,
Morgan did not provide evidence or allege that Burgin personally participated
in his medical treatment, that Burgin had the ability or responsibility to provide
him medical treatment, or that Burgin had any control or authority over security


      2
        The record also evinces that, ultimately, Morgan was prescribed Calamine lotion,
Hytone (a hydrocortisone cream), and Benadryl for his rash, and that the symptoms were
resolved.

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personnel that would have allowed Burgin to provide the proper escort to take
Morgan to medical appointments.3 Burgin stated in his affidavit that he was not
a clinician, did not have a license to practice medicine, and had no medical
training; and that his job involved responding to grievances about the medical
care of the inmates. This evidence is uncontradicted in the record. The record
also reflects that Morgan was under the ongoing care of the McConnell medical
staff and that he was seen dozens of times for the symptoms of which he
complained. As Morgan did not produce evidence showing that Burgin was
responsible for any delay in treatment that may have occurred, and that Burgin
did in fact refer Morgan to be seen by medical staff, the summary judgment
record reflects that Burgin did not violate Morgan’s clearly established
constitutional rights. Accordingly, Burgin was entitled to qualified immunity.4
       AFFIRMED; APPEAL DISMISSED IN PART; MOTION FOR LEAVE TO
FILE SUPPLEMENTAL BRIEF GRANTED.




       3
         Morgan also makes a number of new factual allegations on appeal, such as that he
never received proper treatment for his conditions until he filed the present lawsuit in 2011
and that the prison pharmacy interfered with his treatment by denying him medications. In
general, we do not consider new evidence that was not presented to the district court or new
claims that were not raised in the district court. Theriot v. Parish of Jefferson, 185 F.3d 477,
491 n.26 (5th Cir. 1999); Stewart Glass & Mirror, Inc. v. U.S. Auto Glass Disc. Ctrs., Inc., 200
F.3d 307, 316-17 (5th Cir. 2000). Because Morgan did not raise these claims in the district
court, we do not consider those claims. See Stewart Glass & Mirror, Inc., 200 F.3d at 316-17.
       4
         Finally, Morgan challenges the district court’s denial of his motion for counsel. See
Cupit v. Jones, 835 F.2d 82, 86 (5th Cir. 1987) (providing that a party in a civil rights action
must show extraordinary circumstances to be entitled to appointed counsel). In light of our
disposition of the merits of Morgan’s claims, Morgan has not shown that the district court
committed a clear abuse of discretion by denying his requests for appointment of counsel. See
id.

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