     Case: 16-20321      Document: 00514136882         Page: 1    Date Filed: 08/30/2017




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

                                    No. 16-20321                                  FILED
                                  Summary Calendar                          August 30, 2017
                                                                             Lyle W. Cayce
                                                                                  Clerk
JAYSON GRUMBLES,

                                                 Plaintiff-Appellant

v.

BRAD LIVINGSTON, in his individual capacity; ABBAS KHOSHDEL; JANE
DOE; R. VALLADARES; MYRA L. WALKER; JOHN M. WYNN; BRENDA
HOUGH; BETTY WILLIAMS; B. DAVIES; ROBERT KANE; CATHY
MCPEAK; LESLIE PICKENS; BARBRA JONES; OWEN MURRAY; JAMMIE
BARKER; DAWN E. MERCHANT; JOHN DOE; K. STARKEY; BRYAN
COLLIER, EXECUTIVE DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, in his official capacity,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:14-CV-3610


Before REAVLEY, PRADO, and GRAVES, Circuit Judges.
PER CURIAM: *
       Jayson Grumbles, Texas prisoner # 1665230, proceeding pro se and in
forma pauperis, filed the present 42 U.S.C. § 1983 complaint alleging that 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-20321

appellees were deliberately indifferent to his serious medical needs by denying
him treatment for his Hepatitis C, from 2010 through 2015, while in the
custody of the Texas Department of Criminal Justice (TDCJ), and failing to
properly investigate his related complaints. The district court granted, in part,
the appellees’ Federal Rule of Civil Procedure 12(b) motions, dismissing all
claims arising more than two years before Grumbles filed suit as barred by
Texas’s two-year statute of limitations.      The district court also granted
summary judgment in favor of the appellees and dismissed the appellant’s
§ 1983 complaint with prejudice.      The district court determined that the
appellees were entitled to Eleventh Amendment immunity for claims brought
against them in their official capacity and to qualified immunity for claims
brought against them in their individual capacities.
      The district court’s dismissal of claims under Rule 12(b)(6) and the
district court’s grant of summary judgment are reviewed de novo. See Ibe
v. Jones, 836 F.3d 516, 524 (5th Cir. 2016); Carnaby v. City of Houston, 636
F.3d 183, 187 (5th Cir. 2011). We may affirm the district court’s dismissal
under Rule 12(b)(6) on any ground supported by the record.               Hosein
v. Gonzales, 452 F.3d 401, 403 (5th Cir. 2006). We likewise may affirm the
district court’s grant of summary judgment on any ground supported by the
record. Jones v. Lowndes County, Miss., 678 F.3d 344, 348 (5th Cir. 2012).
      There is no competent summary judgment evidence in this case showing
that the appellees refused to treat Grumbles, ignored his complaints,
intentionally treated him incorrectly, or engaged in any similar conduct that
would clearly evince a wanton disregard for Grumbles’s serious medical needs.
See Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006). To the contrary, the
summary judgment evidence shows that, consistent with TDCJ Hepatitis C
policy, Grumbles was followed in a Hepatitis C chronic care clinic while in



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                                 No. 16-20321

TDCJ custody and that his Hepatitis C was monitored and evaluated
periodically through chronic care visits and medical testing.          Although
Grumbles’s liver ultrasound was rescheduled on more than one occasion, the
scheduling delays were, at most, the result of negligence, and negligence does
not suffice to state a claim of deliberate indifference. See id. Moreover, there
is no evidence that any delay in receiving the ultrasound resulted in any
substantial harm. See Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993).
Indeed, the ultrasound showed no abnormalities. Additionally, there is no
competent summary judgment evidence that Grumbles’s liver was damaged as
a result of any medical care that he did or did not receive while in the custody
of the TDCJ. Neither his disagreement with that approach nor his opinion
that he should have received a certain treatment raises a viable claim of
deliberate indifference. See Bauneulos v. McFarland, 41 F.3d 232, 235 (5th
Cir. 1995) (“[A] disagreement between an inmate and his physician concerning
whether certain medical care was appropriate is actionable under § 1983 only
if there were exceptional circumstances.”).
      Thus, the district court did not err in granting summary judgment in
favor of the defendants on the issue of qualified immunity. See Estelle v.
Gamble, 429 U.S. 97, 104-05 (1976); Pratt v. Harris Cnty., Tex., 822 F.3d 174,
180 (5th Cir. 2016). To the extent that Grumbles sought monetary damages
from the defendants in their official capacities, the defendants were entitled to
judgment as a matter of law on the basis of Eleventh Amendment immunity.
See Mayfield v. Texas Dep’t of Criminal Justice, 529 F.3d 599, 604 (5th Cir.
2008).
      As for Grumbles’s argument that the two-year statute of limitations
should not have been applied in his case because the defendants’ conduct
constituted a continuing tort, the argument is unavailing. Given that the



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                                No. 16-20321

competent summary judgment evidence, which included medical records from
2011 through 2015, showed that Grumbles received consistent care and
monitoring for his Hepatitis C, the continuing-tort doctrine is inapplicable.
Further, because the district court implicitly considered Grumbles’s general
grievances that he was denied care while in TDCJ custody, we do not reach the
district court’s exhaustion determination.
      We reject Grumbles’s challenges to the district court’s decisions to stay
discovery until the threshold question of qualified immunity was resolved and
to deny Grumbles’s motions for a temporary restraining order and for the
appointment of counsel. It is common for a district court to order a stay in
discovery when a court is considering an immunity defense, see Backe v.
LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012), and Grumbles has not shown that
he was entitled to the “extraordinary remedy” of a preliminary injunction,
Byrum v. Landreth, 566 F.3d 442, 445 (5th Cir. 2009), or that exceptional
circumstances warranted the appointment of counsel, see Ulmer v. Chancellor,
691 F.2d 209, 212-13 (5th Cir. 1982).
      Accordingly, the judgment of the district court is AFFIRMED. As this
appeal presents no exceptional circumstances warranting the appointment of
appellate counsel, the motion for the appointment of counsel is DENIED.




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