     Case: 11-40272     Document: 00511805541         Page: 1     Date Filed: 03/29/2012




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

                                                                            FILED
                                                                          March 29, 2012
                                     No. 11-40272
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

ROBERT TROY MCCLURE,

                                                  Plaintiff–Appellant,

v.

SERGEANT KENNETH FOSTER, Texas Department of Criminal Justice;
NURSE TONYA TRAYLOR, University of Texas Medical Branch Care;
OFFICER DARRYL FIELDS, Texas Department of Criminal Justice Corrections
Department; OFFICER RICHARD DANCER, Texas Department of Criminal
Justice Corrections Department,

                                                  Defendants–Appellees.


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                              USDC No. 5:10-CV-78


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Robert Troy McClure, Texas prisoner # 1420457, appeals the district
court’s grant of the defendants’ motion for summary judgment on his claims of
deprivation of two breakfasts, false disciplinary charges, deliberate indifference
to medical needs, and filthy conditions of confinement. The district court found


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-40272

that McClure failed to show any constitutional violations by the defendants or
that the defendants’ actions were clearly unreasonable in light of clearly
established law and, thus, the defendants were entitled to qualified immunity.
      The burden was on McClure to rebut the defendants’ qualified-immunity
defense “by establishing a genuine fact issue as to whether the [defendants’]
allegedly wrongful conduct violated clearly established law.” Brown v. Callahan,
623 F.3d 249, 253 (5th Cir. 2010), cert. denied, 131 S. Ct. 2932 (2011). A prison
official violates the Eighth Amendment only when (1) the deprivation alleged is
“objectively, sufficiently serious,” that is, “a prison official’s act or omission must
result in the denial of the minimal civilized measure of life’s necessities,” and (2)
the prison official’s “state of mind is one of deliberate indifference to inmate
health or safety.” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal
quotation marks and citations omitted). 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.” Id. at 837.
      McClure’s claim that defendants Fields and Dancer did not feed him
breakfast on two dates does not amount to a violation of constitutional rights.
See Berry v. Brady, 192 F.3d 504, 507-08 (5th Cir. 1999). To the extent he
challenges the disciplinary case resulting from his behavior on that occasion,
McClure makes no argument challenging the district court’s determination that
review of that disciplinary case is barred by Heck v. Humphrey, 512 U.S. 477
(1994), and Edwards v. Balisok, 520 U.S. 641 (1997). Accordingly, he has
abandoned that claim. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.
1993); Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th
Cir. 1987).
      Even if McClure could show that the defendants were deliberately
indifferent to McClure’s need for medical care for his cut wrist, he did not meet

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                                  No. 11-40272

his burden of establishing by summary judgment evidence that the need was
serious or that the denial or delay of care posed an excessive risk to his heath.
See Farmer, 511 U.S. at 837.
      McClure points to no summary judgment evidence to support his assertion
that he complained to Nurse Traylor every day about the conditions of the
mental health observation cell. Although he alleged that he told Traylor that he
had no toilet paper and that she replied that this was not her problem, McClure
has not pointed to any summary judgment evidence showing that it was
Traylor’s duty to provide toilet paper. McClure did not rebut Nurse Warren’s
affidavit that showed that this was not Traylor’s duty. McClure’s pleadings and
the summary judgment evidence show that he asked Officer Kadzielski for toilet
paper and was given paper towels instead. Moreover, in his prison grievance,
McClure did not allege that Traylor refused his request for toilet paper, but that
Kadzielski denied that request, and he did not allege that Traylor ignored his
complaints about the conditions of the cell. Even viewing all of the facts in the
light most favorable to McClure, the record as a whole would not lead a rational
trier of fact to find in his favor on these claims; accordingly, there is no genuine
material factual dispute. See Scott v. Harris, 550 U.S. 372, 380 (2007).
      Although McClure alleged that Traylor denied him his inhaler when he
was having an asthma attack, there is no evidence in the record that Traylor
knew that McClure was suffering such an attack and, nonetheless, ordered that
he be denied his doctor-prescribed inhaler.        McClure’s pleadings and the
summary judgment record show, at most, that Traylor ordered that he not be
given anything while he was in the mental health observation cell and that
another nurse who is not named as a defendant was asked to determine whether
McClure should be given his inhaler, and this other nurse determined that he
did not need it.
      Because McClure failed to show any Eighth Amendment violations by
these defendants, he failed to negate their claim of qualified immunity. See

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                                No. 11-40272

Jennings v. Patton, 644 F.3d 297, 300-01 (5th Cir. 2011). Thus, the judgment of
the district court is AFFIRMED.




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