     Case: 12-41420      Document: 00512757475         Page: 1    Date Filed: 09/04/2014




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

                                     No. 12-41420
                                                                                 Fifth Circuit

                                                                               FILED
                                   c/w No. 13-40222                     September 4, 2014
                                                                          Lyle W. Cayce
                                                                               Clerk
JEFFERY ALAN RICHIE,

                                                 Plaintiff–Appellant,

v.

UNIVERSITY OF TEXAS MEDICAL BRANCH HOSPITAL GALVESTON;
TEXAS DEPARTMENT OF CRIMINAL JUSTICE JOHN DOES; and MYRA
L. WALKER, Texas Department of Criminal Justice,

                                                 Defendants–Appellees.



                  Appeals from the United States District Court
                       for the Southern District of Texas
                             USDC No. 2:12-CV-322


Before REAVLEY, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Jeffery Alan Richie, a prisoner proceeding pro se and in forma pauperis,
filed a lawsuit under 42 U.S.C. § 1983 against the University of Texas Medical
Branch Hospital Galveston, unknown John Does employed by the Texas
Department of Criminal Justice, and nurse Myra L. Walker. Richie alleged


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 12-41420 c/w No. 13-40222
that the defendants were deliberately indifferent to his serious medical needs
by not performing certain procedures on his back. A magistrate judge denied
Richie’s motion for temporary injunctive relief and later dismissed the
lawsuit. 1 Because we conclude that Richie has failed to state a claim for which
relief may be granted, we affirm the magistrate judge’s dismissal.
                                            I.
       Richie suffers from back, shoulder, and neck problems, dating to at least
2007, when his period of incarceration began. During that time, Richie has
undergone medical examinations, x-rays, and MRIs, and also has received
treatment in the form of pain medication, steroid injections, physical therapy,
and surgery. In this lawsuit, Richie does not dispute the type or quality of the
medical care that he has actually received. Instead, Richie alleges that the
defendants have not provided two additional medical services that were
recommended by medical personnel: an MRI on his cervical spine and lumbar
back surgery.        Richie alleges that the defendants’ disregard of the
recommendations of medical personnel constitutes deliberate indifference to
his serious medical needs.
      The magistrate judge disagreed, denying Richie’s request for a
temporary restraining order and a preliminary injunction and later dismissing
the lawsuit with prejudice.        In the dismissal order, the magistrate judge
concluded that the claims against the defendants in their official capacities
were barred by the Eleventh Amendment.                The magistrate judge further
concluded that, accepting the facts alleged in Richie’s complaint as true, Richie
had failed to state a claim for which relief may be granted.


       1Richie appealed the denial of temporary injunctive relief; that appeal was docketed
as No. 12-41420. Richie then appeal the dismissal of the lawsuit; that appeal was docketed
as No. 13-40222. We now consolidate the appeals for disposition. See United States v.
Rodriguez, 564 F.3d 735, 737 (5th Cir. 2009).

                                            2
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                           No. 12-41420 c/w No. 13-40222
                                            II.
       A prison official violates the Eighth Amendment’s prohibition of cruel
and unusual punishment if the official shows deliberate indifference to a
prisoner’s serious medical needs.          Estelle v. Gamble, 429 U.S. 97, 103–06
(1976). The official must “know[] of and disregard[] an excessive risk to inmate
health or safety” and “be aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists. Farmer v. Brennan, 511
U.S. 825, 837 (1994). The official also must draw that inference. Id.
       Failed treatments, negligence, and medical malpractice are insufficient
to give rise to a claim of deliberate indifference. Gobert v. Caldwell, 463 F.3d
339, 346 (5th Cir. 2006). A prisoner who disagrees with the course of treatment
or alleges that he should have received further treatment also does not raise a
claim of deliberate indifference. Domino v. Tex. Dep’t of Criminal Justice, 239
F.3d 752, 756 (5th Cir. 2001). Instead, an inmate must show that prison
officials denied him treatment, purposefully provided him improper treatment,
or ignored his medical complaints. Id. A delay in treatment may violate the
Eighth Amendment if the delay was the result of the prison official’s deliberate
indifference and substantial harm—including suffering—occurred during the
delay. Easter v. Powell, 467 F.3d 459, 464–65 (5th Cir. 2006).
       Here, taking all the facts in the light most favorable to Richie, see In re
Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007), it is clear
that medical personnel repeatedly diagnosed, treated, and monitored his
injuries and addressed those injuries in order of priority. Thus, the medical
records, 2 which show the consistent medical treatment of Richie’s injuries,


       2  The medical records were provided by the Attorney General of Texas to the
magistrate judge in the form of a Martinez report. See Martinez v. Aaron, 570 F.2d 317 (10th
Cir. 1978) (tool by which an administrative record is constructed to assist in prisoner
litigation under 28 U.S.C. § 1915); see also Norton v. Dimazana, 122 F.3d 286, 292–93 (5th
Cir. 1997).
                                             3
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                         No. 12-41420 c/w No. 13-40222
rebut his claims of deliberate indifference. See Banuelos v. McFarland, 41 F.3d
232, 235 (5th Cir. 1995) (noting that medical records of sick calls,
examinations, medications, and diagnoses may rebut claims of deliberate
indifference). The records also refute the notion that surgery was a medical
necessity; it was instead a matter of medical judgment. See Gobert, 463 F.3d
at 346 (“[T]he decision whether to provide additional treatment is a classic
example of a matter of medical judgment.”); see also Barrett v. Miss. Dep’t of
Corrs., 427 F. App’x 349, 350 (5th Cir. 2011) (holding that, to the extent that
prisoner argued that medical staff should have performed surgeries earlier,
disagreement with care does not show deliberate indifference).             Similarly,
there is no indication that an MRI on Richie’s cervical spine was medically
necessary. Accordingly, Richie’s disagreement with the care that he received
or the timing of specific procedures does not show deliberate indifference. This
is a disagreement over the course of treatment that Richie should have
received; at most, Richie has alleged that the defendants were negligent. There
is no viable Eighth Amendment claim here. 3
      AFFIRMED.




      3Because we conclude that the lawsuit was properly dismissed, Richie’s remaining
arguments are moot.
                                          4
