     Case: 13-20161      Document: 00512470319         Page: 1    Date Filed: 12/13/2013




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

                                                                              FILED
                                    No. 13-20161                       December 13, 2013
                                  Summary Calendar
                                                                         Lyle W. Cayce
                                                                              Clerk
JESSIE L. JOHNSON,

                                                 Plaintiff-Appellant

v.

OWEN JOSEPH MURRAY, D.O.; S. JOHNSON, D.O. or Medical Doctor.;
SINGLETON, D.O. or Medical Doctor., Medical Doctor BETTY WILLIAMS,
Medical Doctor LANETTE LINTHICUM; RICK THALER, Director; JONI
WHITE, Assistant Director for Classification; VANESSA JONES, Chairman,
State Classification Committee, and the State Classification Committee;
ROBERT BEHRNS, D.O. or Medical Doctor,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:11-CV-3395


Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM: *
       Jessie L. Johnson, Texas prisoner # 1293083, appeals the dismissal, on
the summary judgment motion of Dr. Owen Murray and Dr. Lanette
Linthicum, of his 42 U.S.C. § 1983 action alleging that his Eighth Amendment


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 13-20161    Document: 00512470319     Page: 2    Date Filed: 12/13/2013


                                 No. 13-20161

rights were violated by the defendants’ deliberate indifference to his serious
medical needs. Johnson concedes that his demand for injunctive relief has
been mooted. Murray and Linthicum pleaded qualified immunity.
      We reject Johnson’s claim that Murray and Linthicum are liable in their
official and individual capacities because they were aware that he needed
surgery rather than the antimicrobial treatment administered by prison
healthcare providers and they failed to exercise their authority to cause
surgery to be performed. The official capacity claim fails because the State
invoked its sovereign immunity from a damages judgment.             See Frew v.
Hawkins, 540 U.S. 432, 437 (2004); Goodman v. Harris County, 571 F.3d 388,
394-95 (5th Cir. 2009).     The individual capacity claim fails because the
summary judgment evidence presented by Johnson establishes at best only
malpractice by his attending physicians or Johnson’s disagreement with them
about proper treatment. See FED. R. CIV. P. 56(a); Stewart v. Murphy, 174 F.3d
530, 534 (5th Cir. 1999); Banuelos v. McFarland, 41 F.3d 232, 235 (5th Cir.
1995).   Because there was no constitutional violation at all, Murray and
Linthicum cannot be liable. See Siegert v. Gilley, 500 U.S. 226, 232 (1991);
Rockwell v. Brown, 664 F.3d 985, 990-91 (5th Cir. 2011); Thompkins v. Belt,
828 F.2d 298, 304 (5th Cir. 1987).
      Additionally, we discern no basis on which to conclude that the district
court abused its discretion in declining to allow Johnson to amend his
complaint a second time. See Jones v. Robinson Prop. Grp., 427 F.3d 987, 994
(5th Cir. 2005). We decline also to disturb the district court’s decision not to
appoint counsel for Johnson. See Williams v. Ballard, 466 F.3d 330, 335 (5th
Cir. 2006); Cupit v. Jones, 835 F.2d 82, 86 (5th Cir. 1987).
      AFFIRMED.




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