     Case: 09-60547     Document: 00511567496         Page: 1     Date Filed: 08/10/2011




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

                                                                            FILED
                                                                          August 10, 2011
                                     No. 09-60547
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

DERRICK HARRIS,

                                                  Plaintiff - Appellant

v.

STEPHEN R. WALLEY; WAYNE COUNTY BOARD OF SUPERVISORS,

                                                  Defendants - Appellees


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                              USDC No. 4:06-CV-49


Before BARKSDALE, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
        Derrick Harris, Mississippi prisoner # M2810, proceeding pro se, contests
the summary judgment against his action pursuant to 42 U.S.C. § 1983. Harris
contends: he received inadequate medical care when defendants delayed surgery
to remove several of his teeth; and, as a result, his constitutional rights were
violated.
        Although Harris maintains defendants violated his constitutional rights
by being deliberately indifferent to his constant pain and need for surgery, he

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 09-60547

does not explain how the district court erred in granting summary judgment.
Generally, failing to do so is the same as not appealing the judgment. See, e.g.,
Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987). Defendants, however, have addressed the merits. Accordingly, because
they were not hampered or misled by Harris’ inadequate brief, we will consider
the claims. See Price v. Digital Equip. Corp., 846 F.2d 1026, 1027-28 (5th Cir.
1988).
      In that regard, a summary judgment is reviewed de novo, employing the
same standard as the district court under Federal Rule of Civil Procedure 56.
E.g., Carnaby v. City of Houston, 636 F.3d 183, 187 (5th Cir. 2011). Summary
judgment is appropriate “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).
      Harris’ contentions regarding claimed violations of the Eighth
Amendment, due to deliberate indifference, are unsupported by the record.
There is no genuine dispute regarding defendants’ making regular efforts to
treat and monitor Harris’ dental problems. He was examined and/or treated by
a dentist on seven occasions from 25 June 2002, soon after he first complained
of dental problems, until his surgery on 2 July 2003. Furthermore, there is no
genuine dispute that Harris did not suffer any permanent injuries due to his
medical care. Therefore, Harris has failed to establish a genuine dispute of
material fact regarding the basis for deliberate indifference—that defendants
“refused to treat him, 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
Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001) (citation and internal
quotation marks omitted).
      Harris’ claims regarding the delay in his receiving surgery are likewise
unavailing in the light of there being no genuine dispute of material fact

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                                  No. 09-60547

regarding his not suffering permanent injury. See Mendoza v. Lynaugh, 989
F.2d 191, 195 (5th Cir. 1993) (delay in medical care violates Eighth Amendment
only if deliberate indifference results in substantial harm).
      Finally, Harris’ claim that defendants were driven by “evil motives” and
an intent to cause suffering is presented for the first time on appeal; therefore,
we will not consider it. E.g., Williams v. Ballard, 466 F.3d 330, 335 (5th Cir.
2006).
      AFFIRMED.




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