     Case: 17-30521      Document: 00514794258         Page: 1    Date Filed: 01/14/2019




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

                                      No. 17-30521                            FILED
                                                                       January 14, 2019
                                                                         Lyle W. Cayce
MICHAEL YOUNG,                                                                Clerk

                                                 Plaintiff-Appellant

v.

SANDY MCCAIN, WARDEN, RAYMOND LABORDE CORRECTIONAL
CENTER, in official & individual capacity; MATTHEW GAMBLE, Treating
Psychiatrist, in official & individual capacity; TIM CRAWFORD, Major, in
official & individual capacity; AMY STOGNER,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:16-CV-3404


Before SMITH, DUNCAN, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Michael Young, Louisiana prisoner # 456140, appeals the district court’s
dismissal under Federal Rule of Civil Procedure 12(b)(6) of his 42 U.S.C. § 1983
civil rights action against various prison officials. For the reasons discussed
below, we AFFIRM the judgment of the district court, and DENY Young’s
motions for appointment of counsel and oral argument.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                       I.
       In 2016, Young—who was housed at the Rayburn Correctional Center
(RCC) in Angie, Louisiana—filed a pro se and in forma pauperis (IFP) § 1983
suit against four RCC staff members, namely Warden Sandy McCain; treating
psychiatrist Dr. Matthew Gamble; correctional officer Major Tim Crawford;
and social worker Amy Stogner. In his second amended and superseding
complaint, Young alleged that Stogner and Dr. Gamble, who were both aware
of his history of mental problems, subjected him to unconstitutionally cruel
and unusual punishment by acting with deliberate indifference to his serious
medical needs during September 2015, when Young was suicidal due to his
mother’s terminal illness. Specifically, Young alleged that, although he advised
Stogner that he was suicidal, Stogner acted with “gross[] incompeten[ce]” by
repeatedly downgrading him from extreme to standard suicide watch, which
allowed him to harm himself by banging his head on a steel bed frame and the
wall and by jumping from the toilet to the bed, thereby exacerbating a previous
shoulder injury. Young further alleged that Dr. Gamble “grossly departed from
[the] professional standard [of] treatment” by meeting with Young only briefly
via videoconferencing before concluding that Young did not need treatment
and was competent to participate in a September 17, 2015 disciplinary hearing
arising from his attempts at self-harm.
       Young further asserted that Major Crawford and Warden McCain denied
him     due   process   because   Major     Crawford   allowed    the   allegedly
unconstitutional disciplinary hearing to proceed despite Young’s incompetence
and because Warden McCain failed to overturn the results of those disciplinary
proceedings. Young complained that Major Crawford and Warden McCain also
subjected him to cruel and unusual punishment because his disciplinary
sentence of 60 days in isolation, during which he was given only light clothing



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and was not provided with a mattress and bedding during daytime hours,
subjected him to conditions that aggravated his shoulder injury and intestinal
problems. Young requested declaratory and injunctive relief, as well as
compensatory and punitive damages from each defendant.
      The defendants moved to dismiss Young’s action for failure to state a
claim upon which relief could be granted. The defendants also argued that they
were entitled to qualified immunity because Young failed to allege sufficient
facts supporting violation of a clearly established constitutional right or
objectively unreasonable conduct in light of clearly established law. The
defendants further asserted that Young’s § 1983 challenge to his disciplinary
conviction, which resulted in the loss of good-time credits, was barred by Heck
v. Humphrey, 512 U.S. 477 (1994), because, if successful, it would necessarily
imply the invalidity of a still-valid conviction. In response, Young argued that
he had pled sufficient facts to state his claims, that the defendants were not
entitled to qualified immunity, and that his claims were not Heck-barred
because he was not challenging his loss of good-time credits and his success in
this action would not affect his confinement.
      The magistrate judge ordered defense counsel to furnish the court and
Young with a copy of Young’s medical records, which total 1,478 pages in
length. Once the records were filed and Young acknowledged receipt of them,
the magistrate judge issued a report recommending that the defendants’ Rule
12(b)(6) motion be granted. The magistrate judge determined that the medical
records “f[e]ll far short of establishing the objective and subjective components
needed to prevail on [claims] of deliberate indifference” against Stogner and
Dr. Gamble. The magistrate judge concluded that the selection of an
appropriate suicide precaution level is a matter of professional judgment,
adding that neither Stogner’s alleged violation of a prison policy in



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downgrading Young’s suicide precaution level nor Young’s disagreement with
Dr. Gamble’s method of conducting brief evaluations by videoconference stated
a claim of deliberate indifference. The magistrate judge further determined
that the deprivation of an inmate’s mattress during daylight hours in
disciplinary segregation does not rise to the level of a constitutional violation.
Finally, the magistrate judge concluded that Young’s due process claims
relating to the conduct of his disciplinary proceedings were Heck-barred
because a favorable ruling on those claims would necessarily imply the
invalidity of his disciplinary conviction.
      Young filed objections to the magistrate judge’s report, asserting, in
pertinent part, that Stogner had acted maliciously in downgrading his suicide
watch level and that such downgrades always happened during the work shift
of a prison official, Lieutenant Rigdon, who (according to Young) falsely
reported that Young had admitted to malingering to avoid a disciplinary
hearing. Young also complained that the magistrate judge erred by resolving
factual disputes and considering materials outside the complaint, such as his
medical records.
      The district court overruled Young’s objections and adopted the
magistrate judge’s findings and recommendation. Granting the defendants’
Rule 12(b)(6) motion to dismiss, the district court dismissed Young’s suit with
prejudice. Young timely appealed. The district court granted Young leave to
proceed IFP on appeal.
                                        II.
      Young essentially raises four arguments on appeal. He contends that the
district court erred in: (1) considering qualified immunity at the pre-answer
stage of litigation; (2) determining that Young failed to state a claim for relief
regarding his deliberate indifference claims against Stogner and Dr. Gamble;



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(3) determining that Young failed to state a claim for relief regarding his cruel
and unusual punishment claims against Major Crawford and Warden McCain;
and (4) concluding that his entire suit is barred by Heck. Young has also filed
motions for the appointment of counsel and oral argument.
      This court reviews de novo the district court’s grant of a Rule 12(b)(6)
motion to dismiss. McLin v. Ard, 866 F.3d 682, 688 (5th Cir. 2017). “To survive
a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citation
omitted). “In reviewing the complaint, [this court] draw[s] all inferences in
favor of the nonmoving party, and view[s] all facts and inferences in the light
most favorable to the nonmoving party.” McLin, 866 F.3d at 688 (internal
quotation marks and citation omitted).
                                         A.
      First, there is no merit to Young’s assertion that the district court erred
by “prematurely” granting the defendants qualified immunity at the pre-
answer stage. The district court’s qualified immunity analysis focused upon
only the first requirement for that defense—whether the plaintiff alleged a
constitutional violation. See, e.g., Johnson v. Johnson, 385 F.3d 503, 524 (5th
Cir. 2004). As this court has acknowledged, if the plaintiff “has indeed failed
to allege a [constitutional] violation, then of course there can be no violation of
clearly established law that would overcome qualified immunity.” Id. at 530.
Because the district court’s determination that Young failed to allege a
constitutional violation is consistent with its Rule 12(b)(6) dismissal for failure
to state a claim, Young has failed to show any error in this regard.




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                                        B.
      Second, Young contends that the district court erred in dismissing his
claims that Stogner and Dr. Gamble acted with deliberate indifference to his
serious medical needs. In addition to renewing his factual allegations below
against those defendants, Young asserts that the district court should have
allowed him to conduct discovery, but instead improperly resolved factual
disputes and failed to accept his allegations as true. Young complains that the
district court went beyond considering whether his complaint stated a claim
for relief under Rule 12(b)(6) and instead applied a standard more appropriate
for summary judgment review.
      “Where matters outside the pleadings are considered by the district court
on a motion to dismiss, Rule 12[d] requires the court to treat the motion as one
for summary judgment and to dispose of it as required by [Federal] Rule [of
Civil Procedure] 56.” Washington v. Allstate Ins. Co., 901 F.2d 1281, 1283-84
(5th Cir. 1990). In the instant case, the district court did in fact rely, at least
in part, on Young’s prison medical records in determining that his claims
against Stogner and Dr. Gamble failed to establish deliberate indifference.
Thus, with respect to these claims, the district court effectively converted the
defendants’ Rule 12(b)(6) motion into a summary judgment motion, thereby
triggering the requisite procedural safeguards of notice and a reasonable time
to respond. See FED. R. CIV. P. 12(d); Washington, 901 F.2d at 1284.
      It appears that Young received the requisite notice of the de facto
conversion, at the latest, when the magistrate judge issued its report relying
on the medical records. Furthermore, Young was provided a reasonable
opportunity to respond by filing objections to the magistrate judge’s report. See
Washington, 901 F.2d at 1284. Additionally, while Young complains of an
insufficient opportunity for discovery, he failed to properly request a



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continuance explaining his inability to respond to the summary judgment
motion, and his motion to compel discovery failed to show how additional
discovery would have enabled him to rebut the movant’s summary judgment
showing. See FED. R. CIV. P. 56(d); Washington, 901 F.2d at 1285-86 (applying
abuse of discretion standard to the denial of a Rule 56(d) continuance request).
Consequently, we find no reversible error in the district court’s consideration
of Young’s medical records in its ruling.
      Young has likewise failed to establish that the district court erred in
dismissing his claims that prison medical personnel acted with deliberate
indifference in responding to his suicidal mental health condition. The Eighth
Amendment’s prohibition against cruel and unusual punishment bars the
“unnecessary and wanton infliction of pain” on a prisoner, and a § 1983 cause
of action asserting an Eighth Amendment violation for a lack of proper inmate
medical care requires “deliberate indifference” to the prisoner’s “serious
medical needs.” Estelle v. Gamble, 429 U.S. 97, 101-05 (1976) (internal
quotation marks and citations omitted). The “extremely high standard” of
deliberate indifference requires that prison officials “refused to treat [the
prisoner], ignored his complaints, intentionally treated him incorrectly, or
engaged in any similar conduct that would clearly evince a wanton disregard
for any serious medical needs.” Domino v. Tex. Dep’t of Crim. Just., 239 F.3d
752, 756 (5th Cir. 2001) (internal quotation marks and citations omitted).
Allegations of unsuccessful medical treatment, negligence, neglect, medical
malpractice, or a mistaken judgment do not amount to deliberate indifference
to serious medical needs. Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir.
1991). “[T]he decision whether to provide additional treatment is a classic
example of a matter for medical judgment.” Domino, 239 F.3d at 756 (internal
quotation marks and citation omitted).



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      Young acknowledged in his complaint that his mental health condition
was evaluated by Stogner and Dr. Gamble multiple times during his allegedly
suicidal period in and around September 2015. Young’s allegations “address
[more] the nature of his treatment and not the lack thereof.” Varnado, 920 F.2d
at 321. Specifically, Young asserted that Stogner acted with gross
incompetence and in violation of prison rules by placing him on standard,
rather than extreme, suicide watch and that Dr. Gamble failed to exercise
adequate professional judgment in determining via teleconference that
Young’s problems related to his character and that he did not need mental
health treatment. At most, Young’s complaint alleged that Stogner and
Gamble acted with gross negligence in treating his mental health problems,
which is insufficient to establish deliberate indifference. See Doe v. United
States, 831 F.3d 309, 320 (5th Cir. 2016). As this court has explained, “[s]uicide
is inherently difficult . . . to predict, particularly in the depressing prison
setting,” and an incorrect diagnosis regarding the genuineness of a suicide
threat does not amount to deliberate indifference. Domino, 239 F.3d at 754-56
(quote at 756).
      With respect to Young’s expanded assertions that Stogner acted with ill
will and an injurious intent in concert with Lieutenant Rigdon, such
allegations are conclusory and insufficient to state a claim. See Koch v. Puckett,
907 F.2d 524, 530 (5th Cir. 1990) (rejecting allegations of a collusive
relationship as conclusory and insufficient to raise a constitutional issue).
Additionally, as the district court found, Stogner’s alleged violation of prison
rules in adjusting Young’s suicide threat level was not in itself a constitutional
violation. See Samford v. Dretke, 562 F.3d 674, 681 (5th Cir. 2009). Finally,
with respect to his complaint regarding Dr. Gamble’s video-enabled evaluation,
Young is merely expressing a disagreement with a diagnostic measure, which



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“does not state a claim for Eighth Amendment indifference to medical needs.”
Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir. 1997). In sum, the district
court did not err in dismissing Young’s deliberate indifference claims against
Stogner and Dr. Gamble.
                                        C.
        Third, Young sets forth a scant argument appearing to renew his
assertion that Major Crawford and Warden McCain subjected him to cruel and
unusual punishment by placing him in injurious disciplinary confinement
conditions. Specifically, Young complains that he was sentenced to “strip
cell/isolation,” that he was deprived of a mattress, sheets, and blankets for 60
days, and that in the fall and winter of 2015 he was given only “a very very
light fabric material,” two undershirts, and two pairs of socks, and was not
provided with a mattress and bedding between 5:30 a.m. and 8:30 p.m. each
day.
        “[T]he treatment a prisoner receives in prison and the conditions under
which he is confined are subject to scrutiny under the Eighth Amendment.”
Woods v. Edwards, 51 F.3d 577, 581 (5th Cir. 1995) (internal quotation marks
and citation omitted). To establish an Eighth Amendment violation, the
prisoner must demonstrate that the conditions of his confinement were “so
serious as to deprive prisoners of the minimal . . . measure of life’s necessities,
as when it denies the prisoner some basic human need,” and further, that the
responsible prison officials acted with deliberate indifference to the prisoner’s
health or safety. Id. (internal quotation marks and citation omitted).
        In Novak v. Beto, 453 F.2d 661, 665-66, 669, 671 (5th Cir. 1971), this
court found no constitutional violation where the inmates in solitary
confinement were given gowns and blankets, but were not provided mattresses
or pillows, even during nighttime hours, for up to 15 days. Likewise, this court



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has affirmed dismissals of § 1983 challenges to isolation conditions as frivolous
where an inmate was denied a mattress and bedding only during daytime
hours for an unspecified number of days. See Hadwin v. Stadler, 196 F. App’x
293, 293 (5th Cir. 2006) (unpublished); Alex v. Stadler, 225 F. App’x 313, 314
(5th Cir. 2007) (unpublished). Accordingly, Young has failed to show that the
district court erred in dismissing his conditions of confinement claim based on
his deprivation of a mattress and bedding.
        Additionally, Young has failed to allege exposure to the type of extremely
cold conditions that have been deemed a denial of the minimal measure of life’s
necessities. See Palmer v. Johnson, 193 F.3d 346, 353 (5th Cir. 1999) (finding
such a denial in light of the inmate’s “overnight outdoor confinement with no
shelter, jacket, blanket, or source of heat as the temperature dropped and the
wind blew along with the total lack of bathroom facilities for forty-nine inmates
sharing a small bounded area”); Alex, 225 F. App’x at 314 (reciting prisoner’s
nonfrivolous Eighth Amendment allegations that “he was held in very cold
conditions, for an extended period in November and December, wearing
nothing but a paper gown during the daytime, and that he was ordered to
remain on the cold concrete whenever he attempted to sleep on the warmer,
metal bunk”). Young has failed to show that the district court erred in
dismissing his conditions of confinement claim based on exposure to extreme
cold.
                                        D.
        Fourth and finally, Young asserts that his claims related to his
disciplinary proceedings are not Heck-barred. However, Young expressly
concedes in his reply brief that his due process claims relating to his
disciplinary proceedings are not actionable (and he also clarifies that he was
not alleging a due process claim against Dr. Gamble for certifying that he could



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participate in the disciplinary hearing). Because Young does not challenge in
this appeal the district court’s dismissal of his due process claims against
Major Crawford and Warden McCain as barred by Heck, Young has abandoned
this issue. See Davis v. Maggio, 706 F.2d 568, 571 (5th Cir. 1983) (stating that
“[c]laims not pressed on appeal are deemed abandoned”).
      The judgment of the district court is AFFIRMED. Young’s motions for
appointment of counsel and oral argument are DENIED.




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