     Case: 11-20231     Document: 00511881537         Page: 1     Date Filed: 06/08/2012




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

                                                                            FILED
                                                                            June 8, 2012

                                      No. 11-20231                         Lyle W. Cayce
                                                                                Clerk

HERBERT DARRELL HAY,

                                                  Plaintiff-Appellant
v.

RICK THALER, Director, Texas Department of Criminal Justice,
Correctional Institutions Division; BELVIS MCBRIDE, BDDS Jester III
Dentist; BILLY HORTON, BDDS Assistant Director of University of Texas
Medical Branch Medical Services; S. K. DOSTAL, Practice Manager for
University of Texas Medical Branch; UNIVERSITY OF TEXAS MEDICAL
BRANCH,

                                                  Defendants-Appellees



                   Appeals from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:09-CV-4075


Before HIGGINBOTHAM, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        Herbert Darrell Hay, a pro se inmate, filed a Section 1983 complaint
alleging defendants violated his Eighth Amendment rights, the Americans with
Disabilities Act and the Rehabilitation Act. The district court granted summary


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-20231

judgment in favor of the individual defendants, and dismissed Hay’s claims
against defendant University of Texas Medical Branch (UTMB). On appeal, Hay
contends the district court erred by granting summary judgment, denying
several motions he filed with the court, and refusing to enter a default judgment
against UTMB. Finding no error, we affirm the judgment of the district court.
                                       I.
      Plaintiff-appellant Herbert Darrell Hay is a prisoner in the Texas
Department of Criminal Justice-Correctional Institutions Division (TDCJ). He
is in his sixties and suffers from several chronic diseases. When Hay was
previously incarcerated from 1976 to 2003, he qualified for and received
dentures. Prison policy changed in 2003, however, and Hay was released on
parole without dentures in 2004. He returned to prison in December 2007.
      In 2009, Hay filed a Section 1983 complaint alleging that he received
inadequate dental care in 2008 and 2009 because officials refused to provide him
with dentures, in accordance with a prison policy severely restricting the
issuance of dentures. The defendants were identified as Rick Thaler, director of
the TDCJ; Billy Horton, a dentist serving as the assistant director for UTMB;
Belvis McBride, the dentist at the Jester III Unit in which Hay is incarcerated;
and S. K. Dostal, the dental practice manager for UTMB. Hay claimed he was
denied appropriate dental treatment under UTMB policies, that he repeatedly
and unsuccessfully voiced his complaints to the defendants, and that he asserted
that his rights under the Americans with Disabilities Act (ADA) were being
violated. He requested declaratory and injunctive relief and monetary damages
from McBride, Dostal and Horton in their individual capacities, and declaratory
and injunctive relief from Thaler in his official capacity. He amended his
complaint to add UTMB as a defendant on the grounds that UTMB helped
formulate the challenged dentures policy. Hay sought declaratory, injunctive and



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                                 No. 11-20231

monetary relief from UTMB, punitive damages from all defendants except
McBride, and an injunction ordering defendants to provide him with dentures.
      The individual defendants moved for summary judgment, claiming they
were entitled to qualified immunity and Eleventh Amendment immunity, and
that Hay failed to establish a claim under the Eighth Amendment, ADA, or
Rehabilitation Act (RA). Hay in turn moved for summary judgment against
these defendants. In addition, because UTMB did not respond to Hay’s amended
complaint, Hay requested entry of a default judgment against it.
      The district court denied Hay’s request for default judgment against
UTMB on the grounds that it had never been served with process. It granted
summary judgment in favor of the individual defendants and denied Hay’s
motions for summary judgment, concluding Hay had failed to state a viable
deliberate indifference claim under the Eighth Amendment, or any claims under
the ADA and RA. Specifically, the court found that the defendants followed
prison procedures and provided treatment meeting the standard of care for
serious medical conditions. It also concluded that individual defendants may not
be held liable under the ADA and RA. Finally, the district court granted
summary judgment in favor of defendant Thaler in his official capacity and
dismissed Hay’s claims against UTMB with prejudice under 28 U.S.C. § 1915A.
It held that Hay’s claims against Thaler were barred by the Eleventh
Amendment, that Hay’s Section 1983 claims against UTMB were barred by the
state’s sovereign immunity, and that UTMB was not a “person” for purposes of
Section 1983.   The court dismissed Hay’s complaint and denied all other
outstanding motions.
      Hay filed a motion for a new trial under Fed. R. Civ. P. 59(e), claiming the
procedural posture of the case made summary judgment improper. The district
court denied this motion, and Hay filed a notice of appeal with this court. Hay
then filed a motion for relief of judgment under Fed. R. Civ. P. 60(b). That

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motion and Hay’s subsequent motion for reconsideration were denied by the
district court.1
                                               II.
       Hay first argues that the district court erred in granting summary
judgment to defendants on his Eighth Amendment claims of deliberate
indifference because there were disputed genuine issues of material fact.
       “We review a district court’s order granting summary judgment de novo.”2
Summary judgment is appropriate when “there is no genuine dispute as to any
material fact and the movant is entitled to a judgment as a matter of law.”3 In
making this determination, all evidence and facts must be viewed in the light
most favorable to the non-movant.4 A genuine issue of material facts exists
when after considering the pleadings, depositions, answers to interrogatories,
admissions and affidavits, the evidence is such that a reasonable jury could
return a verdict for the non-movant.5 “By its very terms, this standard provides
that the mere existence of some alleged factual dispute between the parties will
not defeat an otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact.”6 “Once a movant

       1
         The filing of a notice of appeal gave this Court jurisdiction over this case. That Hay’s
Rule 60(b) motion and motion for reconsideration were filed in the district court after the
notice of appeal did not divest us of jurisdiction. See Lopez Dominguez v. Gulf Coast Marine
& Assoc., Inc., 607 F.3d 1066, 1073-74 (5th Cir. 2010) (“Although an effective notice of appeal
strips district courts of jurisdiction to grant a Rule 60(b) motion, it does not prevent litigants
from filing them in the district court while an appeal is pending. Instead, the district court
retains jurisdiction to consider and deny Rule 60(b) motions....”) (internal modifications,
quotation marks and citations omitted).
       2
           LeMaire v. Louisiana Dep’t of Transp. and Dev., 480 F.3d 383, 386 (5th Cir. 2007).
       3
           FED. R. CIV. P. 56(a).
       4
           United Fire & Cas. Co. v. Hixson Bros., Inc., 453 F.3d 283, 285 (5th Cir. 2006).
       5
           Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
       6
           Id.

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                                         No. 11-20231

who does not have the burden of proof at trial makes a properly supported
motion, the burden shifts to the nonmovant to show that a summary judgment
should not be granted.”7
       Hay’s complaint alleged the defendants violated his Eighth Amendment
rights because they were deliberately indifferent to Hay’s serious medical needs
by denying him dentures.               In order to state a claim under the Eighth
Amendment, Hay had to show that he was denied “adequate medical care.”8 “A
prison official violates the Eighth Amendment’s prohibition against cruel and
unusual punishment when his conduct demonstrates deliberate indifference to
a prisoner’s serious medical needs, constituting an ‘unnecessary and wanton
infliction of pain.’”9 This may be demonstrated by alleging the official “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.”10 On the other hand, “[u]nsuccessful medical
treatment, acts of negligence, or medical malpractice do not constitute deliberate
indifference, nor does a prisoner’s disagreement with his medical treatment,
absent exceptional circumstances.”11                 A defendant may present “[m]edical
records of sick calls, examinations, diagnoses, and medications [to] rebut an
inmate’s allegations of deliberate indifference.”12



       7
           Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).
       8
        Easter v. Powell, 467 F.3d 459, 463 (5th Cir. 2006) (internal modifications omitted)
(quoting Farmer v. Brennan, 511 U.S. 825, 832 (1994)).
       9
           Id. (quoting Wilson v. Seiter, 501 U.S. 294, 297 (1991)).
       10
         Domino v. Tex. Dep’t of Crim. Justice, 239 F.3d 752, 756 (5th Cir. 2001) (internal
quotation marks omitted).
       11
            Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006).
       12
            Id. at 346 n.24 (internal quotation marks and citations omitted).

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      Hay appears to identify four factual disputes that he contends precluded
summary judgment on his Eighth Amendment claim. First, he argues that it
was not clear whether McBride, the dentist who treated him, was following
UTMB policies when he denied Hay’s requests for dentures. Hay claims that
when he arrived at the unit, a handout attached to his orientation handbook
stated that “[d]entures are not issued any longer, but [we] will maintain the ones
you already have.”13 UTMB’s medical manual instructed medical personnel that
dentures could only be provided to prisoners if “medically necessary.” Medical
personnel were directed to consider the prisoner’s Body Mass Index (BMI) in
making this determination, since dentures would be medically necessary for
prisoners whose dental problems prevented them from receiving adequate
nutrition.
      Hay points to no evidence indicating McBride did not follow UTMB’s
written policies on dentures when treating him. To the contrary, records from
Hay’s eight medical visits during the twenty-month period at issue confirm
McBride explained the UTMB denture policies to Hay on at least three separate
occasions, that Hay indicated he understood those policies, that McBride’s
examinations revealed Hay did not meet the “medically necessary” criteria at
least in part because he experienced no significant BMI changes, and that
McBride provided treatment for Hay’s various dental-related complaints.
Because Hay has failed to show a disputed issue of material fact regarding
whether McBride followed UTMB policy, he is not entitled to relief on this point.
      Second, Hay claims there was a disputed issue of material fact regarding
whether Hay was in pain during this time. No such dispute appears to have
existed, however. Neither the defendants nor the district court denied that Hay
was in pain. Instead, the district court found Hay had failed to present evidence

      13
         Hay states in his brief that this was a distinct and unconstitutional unit policy
created by defendant Dostal, but provides no support for that allegation.

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that this pain amounted to a “serious medical condition.” On appeal, Hay does
not point to any new evidence on this issue, but simply emphasizes he reported
pain during some of his visits to the clinic. Because he has failed to show that
there was any dispute regarding the fact that he experienced pain, he has not
demonstrated that summary judgment was inappropriate on this ground.
       Hay next claims that he received inadequate care for one of his teeth, tooth
number 13. He alleges he showed the breaking tooth to McBride on several
occasions, and that McBride failed to properly examine and treat it. As a result,
Hay contends, McBride acted with deliberate indifference. The record, however,
shows that McBride examined tooth number 13 on several occasions and,
following examination, determined Hay’s complaints necessitated “Priority 2"
level care. As we have previously explained, evidence such as medical records
of visits, examinations and diagnoses may rebut an inmate’s allegations of
deliberate indifference.14         Hay does not dispute that McBride made these
examinations and evaluations; instead, he disagrees with the treatment he
received, claiming he should have been afforded emergency care for his
complaint and that tooth number 13's dislodged filling should have been
repaired more quickly.             Disagreement with the substance of McBride’s
professional evaluation is not sufficient to support a claim of deliberate
indifference, and Hay has therefore not demonstrated that summary judgment
was improper.15
       Finally, Hay argues that there is a factual dispute concerning whether
McBride considered Hay’s overall health or only his BMI in determining his
eligibility for dentures. Hay presents no evidence that consideration of his BMI


       14
            See Gobert, 463 F.3d at 346 n. 24.
       15
         See, e.g., Domino, 239 F.3d at 756 (“[T]he decision whether to provide additional
treatment is a classic example of a matter for medical judgment.”) (internal quotation marks
omitted) (quoting Estelle v. Gamble, 429 U.S. 97, 107 (1976)).

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was a medically improper way of determining his eligibility for dentures.
Furthermore, McBride’s consideration of Hay’s BMI was in accordance with
UTMB’s written policies, and the defendants presented evidence in the form of
affidavits from Horton and an expert supporting McBride’s treatment of Hay and
UTMB’s denture policies. The record evidence also showed McBride reviewed
Hay’s medical records and successfully treated Hay for several of his dental
complaints, even though the treatment did not meet Hay’s specifications.16
Given this, Hay has not presented sufficient evidence to support a claim that
McBride acted with “wanton disregard for [his] serious medical needs.”17
       Hay has failed to show the district court overlooked a genuine dispute of
material fact that precluded summary judgment, and makes no other
substantive arguments against the dismissal of his Eighth Amendment claims.18
We therefore affirm the judgment of the district court on this issue.
                                            III.
       Hay next challenges the dismissal of his ADA and RA claims.19
       Hay brought several claims under the ADA and RA against defendants
McBride, Horton and Dostal in their individual capacities, defendant Thaler in
his official capacity, and defendant UTMB. Title II of the ADA provides that an

       16
        See Bejaran v. Cruz, 79 Fed. Appx. 73, 74 (5th Cir. 2003) (“Bejaran’s admission in his
complaint that the prison medical staff took x-rays...[and] gave him ‘generic,’ ‘mild
medications’ refute his assertion of deliberate indifference to his medical needs.”)
       17
            Domino, 239 F.3d at 756.
       18
         Hay states the defendants were not entitled to qualified or Eleventh Amendment
immunity, but provides no argument or evidence in support of this allegation. Conclusory
statements cannot defeat a motion for summary judgment. See Turner v. Baylor Richardson
Med. Ctr., 476 F.3d 337, 345-46 (5th Cir. 2007).
       19
          The district court did not err in dismissing Hay’s RA claims against these defendants
in their individual capacities. See Lollar v. Baker, 196 F.3d 603, 609 (5th Cir. 1999). Because
the remedies, procedures, and rights under the ADA are the same as those under the RA, we
note that the district court reasoned there also would be no individual liability for claims of
violations under the ADA. See Kemp v. Holder, 610 F.3d 231, 234 (5th Cir. 2010).

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individual shall not be “excluded from participation in or be denied the benefits
of the services, programs, or activities of a public entity” by reason of a
qualifying disability.20 To state a claim for relief under the ADA, the plaintiff
must allege “(1) that he has a qualifying disability; (2) that he is being denied
the benefits of services...for which the public entity is responsible...; and (3) that
such discrimination is by reason of his disability.”21 The RA has a similar
purpose and pleading requirements. The Act states that a disabled individual
shall not “solely by reason of her or his disability...be denied the benefits of...any
program or activity receiving Federal financial assistance.”22 To state a claim
for relief under the RA, a plaintiff must allege: “(1) the existence of a program
or activity within the state which receives federal financial assistance; (2) the
plaintiff is an intended beneficiary of the federal assistance; and (3) the plaintiff
is a qualified handicapped person, who solely by the reason of her handicap
has...been denied benefits from, or otherwise been subject to discrimination
under such program or activity.”23
       Hay alleges several disabilities, including chronic diseases (namely,
chronic obstructive pulmonary disease, schizophrenia, and hypertension), and
a lack of natural teeth, and that the defendants denied him the benefit of
services, programs or activities of the TDCJ by refusing to provide him with
dentures. He does not claim, however, that this alleged discrimination was by
reason of his disabilities, and such a claim is not supported by any evidence in




       20
            42 U.S.C. § 12132.
       21
            Hale v. King, 642 F.3d 492, 499 (5th Cir. 2011).
       22
            29 U.S.C. § 794(a).
       23
         Melton v. Dallas Area Rapid Transit, 391 F.3d 669, 676 n. 8 (5th Cir. 2004) (emphasis
omitted).

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the record.24 Hay appears to argue on appeal that he should have received an
accommodation for his disabilities under the ADA.25 However he does not allege,
much less explain, how his alleged disabilities made it more difficult for him to
access the benefits of TDCJ’s services – namely, dentures – or gave him less
meaningful access to those services. Thus, even if we assume that Hay could
bring RA and ADA claims against these particular defendants, has a qualifying
disability under the ADA and RA, and was denied services of the TDCJ, we must
conclude that he has failed to present a prima facie case under either statute.
His claims were therefore properly dismissed by the district court.
                                               IV.
         Hay next challenges two orders of the magistrate judge.26 First, he
contends the magistrate judge erred by denying him leave to amend his
complaint. Second, he claims the magistrate judge erred by denying his motion
and amended motion for counsel. We review both for abuse of discretion.27



         24
         Compare with Hale, 642 F.3d at 499 (plaintiff made prima facie case by alleging that
he was stopped from using certain facilities “because he has Hepatitis C, chronic back
problems, and psychiatric conditions”) (emphasis added); Tuft v. Texas, 410 Fed. Appx. 770,
775 (5th Cir. 2011) (plaintiff did not show over-crowding of showers was an ADA violation
because there was no evidence plaintiff was discriminated against in his use of the prison
showers by reason of his disability).
         25
              Citing 28 C.F.R. §135.130; Henrietta D. v. Bloomberg, 331 F.3d 261, 274 (2d Cir.
2003).
         26
         Hay lists several other motions in his brief, and claims they were improperly disposed
of below. Because he presents no argument supporting this allegation, we do not consider it.
See Oden v. Oktibbeha Cnty., 246 F.3d 458, 470 n.12 (5th Cir.), cert. denied, 122 S. Ct. 341
(2001), and cert. denied, 122 S. Ct. 342 (2001). Hay’s pro se status does not exempt him from
this requirement. See Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995).
         27
          Lowrey v. Texas A & M University System, 117 F.3d 242, 245 (5th Cir. 1997) (“We
review denial of leave to amend a complaint for abuse of discretion.”); Gilbert v. French, 364
Fed. Appx. 76, 84 (5th Cir. 2010) (“We review a district court’s denial of a motion for
appointment of counsel for abuse of discretion.”) (citing Robbins v. Maggio, 750 F.2d 405, 413
(5th Cir. 1985)).

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                                           No. 11-20231

       Hay’s first argument is unavailing. He claims that in his motion for
summary judgment, he requested leave to amend his complaint in order to
advance claims under the ADA and RA against UTMB in its official capacity.
The motion for summary judgment, however, was decided by the district court
and not the magistrate judge. Furthermore, the district court had previously
granted Hay leave to amend his complaint to include UTMB, and Hay filed an
amended complaint naming UTMB in its official capacity before he filed his
motion for summary judgment. Thus, Hay has failed to show that a denial of
leave to amend his complaint constituted an abuse of discretion.28
       Hay next claims that the magistrate judge should have granted his motion
and his amended motion for counsel. Appointment of counsel is appropriate if
justified by exceptional circumstances, which may be demonstrated by four
factors:
                (1) the type and complexity of the case; (2) whether
                [plaintiff] is capable of adequately presenting his case;
                (3) whether [plaintiff] is in a position to investigate
                adequately the case; and (4) whether the evidence will
                consist in large part of conflicting testimony so as to
                require skill in the presentation of evidence and in cross
                examination.29

       On appeal, Hay argues that the case is factually complex because it alleges
violations of his civil rights over the course of several years, involves multiple
parties, and states constitutional and federal law claims. He claims he is not
capable of adequately presenting or investigating his case because he is pro se,
suffers from mental problems, lacks adequate resources and training, and is
unable to communicate with potential witnesses, take depositions, or employ


       28
            See Lowrey, 117 F.3d at 246.
      29
         Gilbert, 364 Fed. Appx. at 84 (quoting Ulmer v. Chancellor, 691 F.2d 209, 213 (5th
Cir. 1982)) (internal modifications omitted).

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experts. Finally, he alleges that the evidence will consist in large part of
conflicting testimony because he is challenging McBride’s claim that McBride
relied on the UTMB policy and exercised professional medical judgment when
denying dentures to Hay.
      These claims do not show the presence of extraordinary circumstances
entitling Hay to appointment of counsel. The magistrate judge considered these
same arguments, and determined they did not fulfill the requirements for
appointment of counsel. The magistrate judge correctly observed that even
though it contains several claims and defendants, this case is not particularly
factually or legally complex. Furthermore, the magistrate judge noted that Hay
had shown through his prior filings that he was capable of adequately presenting
his case “even with his special needs,” and that the evidence in the case would
“largely consist of his medical and dental records, UTMB policy statements, and
institutional grievances and reports,” meaning Hay would not have many
investigative responsibilities. Finally, we observe that presentation of McBride’s
and Hay’s conflicting testimony does not require “skill in the presentation of
evidence and in cross examination.”30 Based on the foregoing, it is clear that the
magistrate did not abuse its discretion by denying Hay’s request for appointment
of counsel.
                                             V.
      In his final assignment of error, Hay challenges the district court’s refusal
to enter a default judgment against UTMB on the grounds that UTMB failed to
answer Hay’s amended complaint.31                 As the district court noted in its
memorandum and order on dismissal, however, UTMB never received service of
process. The court therefore lacked personal jurisdiction over UTMB, and any


      30
           Id.
      31
           See FED. R. CIV. P. 55(a).

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default judgment against it would have been void.32 Hay is therefore not entitled
to relief on this ground.
                                           VI.
       For the foregoing reasons, we AFFIRM the judgment of the district court.
Hay’s motions for appointment of appellate counsel and correction of the record
are DENIED.




       32
         Rogers v. Hartford Life and Acc. Inc. Co., 167 F.3d 933, 940 (5th Cir. 1999) (citing
Fed. R. Civ. P. 60(b)(4)).

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