     Case: 10-40780     Document: 00511607823         Page: 1     Date Filed: 09/20/2011




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

                                                                            FILED
                                                                        September 20, 2011
                                     No. 10-40780
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

LARRY HUDSON, JR.,

                                                  Plaintiff-Appellant

v.

UNIVERSITY OF TEXAS MEDICAL BRANCH; M.D. JAMES MASHBURN
FITTS, In His Individual Capacity; LICENCED VOCATION NURSE KEITH
WEBB, In His Individual Capacity; TDCJ-ID; WARDEN OSCAR MENDOZA,
In His Individual Capacity; NATHANIEL QUARTERMAN, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS
DIVISION; DR. OWEN MURAY, In His Official Capacity,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 2:08-CV-254


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
        Larry Hudson, Jr., Texas prisoner # 1218900, instituted this action under
42 U.S.C. § 1983 seeking redress for alleged acts of retaliation and deliberate
indifference to his serious medical needs. On appeal, Hudson challenges the


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-40780

district court’s decisions to grant the defendants’ motion for summary judgment
and deny Hudson’s motion under Federal Rule of Civil Procedure 59(e). Hudson
also moves this Court for appointed counsel. We affirm the district court’s grant
of summary judgment, find no abuse of discretion in the denial of the Rule 59(e)
motion, and deny the motion to appoint counsel.1
          We review a grant of summary judgment de novo, applying the same
standard as the district court.2 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.”3 The non-moving party
cannot defeat summary judgment by resting on the allegations of his complaint,
forwarding conclusory allegations and unsubstantiated assertions, or raising
nothing more than “metaphysical doubt as to the material facts.”4
          Hudson first contends that the district court erred by granting summary
judgment on his Eighth Amendment claim of deliberate indifference to serious
medical needs. 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.”5



          1
          The district court also granted summary judgment to a defendant against whom
Hudson had sought injunctive relief in the form of a transfer out of the prison unit where
Hudson was then housed. Because Hudson was subsequently transferred out of that unit, the
district court dismissed Hudson’s request for injunctive relief on mootness grounds. Although
this determination was certainly correct, see Herman v. Holiday, 238 F.3d 660, 666 (5th Cir.
2001), Hudson waived any challenge thereto by failing to raise it in his opening brief, see
United States v. Elashyi, 554 F.3d 480, 494 n.4 (5th Cir. 2008).
          2
              See, e.g., Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir. 2010).
          3
              FED. R. CIV. P. 56(a).
          4
              Duffie v. United States, 600 F.3d 362, 371 (5th Cir.), cert. denied, 131 S. Ct. 355
(2010).
          5
              Farmer v. Brennan, 511 U.S. 825, 837 (1994).

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                                       No. 10-40780

This is “an extremely high standard to meet.”6 Hudson has failed to meet it.
Hudson suffers from diabetes and a bacterial infection of the stomach. He
alleges that the defendants refused to give him a certain type of insulin, ignored
his complaints about adverse reactions to medicine, and intentionally
misdiagnosed his diabetes. These allegations do not create a genuine factual
dispute as to whether the defendants were deliberately indifferent to Hudson’s
medical needs. In a laudably thorough opinion. the magistrate judge detailed
each of the numerous occasions on which Hudson sought treatment from the
prison medical staff for diabetes- or stomach-infection-related complications.
Each time, the defendants provided appointments, food, treatment, medication,
counseling, and education.7 The evidence overwhelmingly shows that each
individually named defendant responded to Hudson’s medical needs in a
professionally competent manner. The fact that Hudson sometimes requested
or would have preferred a different course of treatment does not establish that
prison officials were deliberately indifferent in treating him.8
       The district court was also correct to grant summary judgment on
Hudson’s claim that the defendant James Fitts unconstitutionally retaliated
against him. “To state a valid claim for retaliation under section 1983, a
prisoner must allege (1) a specific constitutional right, (2) the defendant’s intent
to retaliate against the prisoner for his or her exercise of that right, (3) a




       6
       Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006) (citation and internal quotation
marks omitted).
       7
         See Banuelos v. McFarland, 41 F.3d 232, 235 (5th Cir. 1995) (“Medical records of sick
calls, examinations, diagnoses, and medications may rebut an inmate’s allegations of
deliberate indifference.”).
       8
         See Gobert, 463 F.3d at 346 (explaining that “a prisoner’s disagreement with his
medical treatment” is not enough to make out deliberate-indifference claim); Murrell v.
Bennett, 615 F.2d 306, 310 n.4 (5th Cir. 1980) (noting that “deliberate indifference” involves
“something more than a medical judgment call”).

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                                         No. 10-40780

retaliatory adverse act, and (4) causation.”9 Hudson has no evidence as to the
third of these elements. Hudson alleges that Fitts “jumped in [Hudson’s] face”
and “cussed” at him and later threatened to dilute Hudson’s insulin with water
after Hudson filed a grievance against Fitts. But a prison official’s mere use of
threatening language, without more, does not constitute a retaliatory adverse
act.10 Hudson has not pointed to any evidence in the record that shows that Fitts
caused him to suffered a concrete, tangible harm. His statement in his affidavit
that he “believe[s]” his insulin was watered down is not enough.11
       Third, Hudson’s challenge to the district court’s denial of his Rule 59(e)
motion is likewise unavailing. The motion simply regurgitated arguments
Hudson had previously presented and did not rely upon newly discovered
evidence. The denial of the motion was not an abuse of discretion.12
       Finally, Hudson is not entitled to the appointment of appellate counsel.
There is no right to appointed counsel in civil cases, and we do not appoint
counsel unless the case presents extraordinary circumstances warranting an
appointment.13 An examination of Hudson’s pleadings and the appellate record
shows that Hudson is capable of understanding the relevant evidence and
presenting his own arguments.
       The judgment of the district court is AFFIRMED, and Hudson’s motion for
the appointment of counsel is DENIED.



       9
           Jones v. Greninger, 188 F.3d 322, 324–25 (5th Cir. 1999).
       10
            McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir. 1983).
       11
          See Thomas v. Atmos Energy Corp., 223 F. App’x 369, 375 (5th Cir. 2007) (per curiam)
(unpublished) (“[F]acts alleged on ... ‘belief’ ... are not sufficient to create a genuine issue of
fact.’ (quoting Cermetek, Inc. v. Butler Avpak, Inc., 573 F.2d 1370, 1377 (9th Cir. 1978))).
       12
       See Johnson v. Diversicare Afton Oaks, LLC, 597 F.3d 673, 677 (5th Cir. 2010);
Waltman v. Int'l Paper Co., 875 F.2d 468, 473 (5th Cir.1989).
       13
         See Cooper v. Sheriff, Lubbock County, Tex., 929 F.2d 1078, 1084 (5th Cir. 1991);
Ulmer v. Chancellor, 691 F.2d 209, 212-13 (5th Cir. 1982).

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