     Case: 16-60080      Document: 00514125696         Page: 1    Date Filed: 08/22/2017




                           Revised August 22, 2017

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                            United States Court of Appeals

                                    No. 16-60080
                                                                                     Fifth Circuit

                                                                                   FILED
                                  Summary Calendar                             June 13, 2017
                                                                              Lyle W. Cayce
DONALD KEITH SMITH,                                                                Clerk


                                                 Plaintiff-Appellant

v.

RONALD WOODALL; MICHAEL HATTEN; JOSEPH KEYES; WEXFORD
HEALTH,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:14-CV-294


Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *
       Donald Keith Smith, Mississippi prisoner # 150025, appeals the district
court’s judgment dismissing his 42 U.S.C. § 1983 complaint against Dr. Ronald
Woodall (Dr. Woodall), Health Service Administrator Michael Hatten (Hatten),
Nurse Practitioner Joseph Keyes (Keyes), and Wexford Health Sources, Inc.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-60080    Document: 00514125696     Page: 2   Date Filed: 08/22/2017


                                 No. 16-60080

(Wexford). Smith alleged that Keyes, Wexford, and Hatten violated his Eighth
Amendment rights by denying him prompt and adequate medical care for the
broken arm he sustained while incarcerated at the South Mississippi
Correctional Institution in Leakesville, Mississippi.     He also alleged that
Wexford, by and through Dr. Woodall, violated his due process rights by
authorizing the withdrawal of $6 from his inmate account for an emergency
sick call request.   The district court granted the defendants’ motions for
summary judgment and dismissed Smith’s claims with prejudice. We review
a grant of summary judgment de novo, using the same standard as that
employed by the district court. Carnaby v. City of Houston, 636 F.3d 183, 187
(5th Cir. 2011).
      The competent summary judgment evidence refutes Smith’s contention
that Keyes and Wexford ignored his complaints, intentionally treated him
incorrectly, and left him with a broken arm dangling by his side for 27 days.
See Gobert v. Caldwell, 463 F.3d 339, 346 n.24 (5th Cir. 2006) (“Medical records
of sick calls, examinations, diagnoses, and medications may rebut an inmate’s
allegations of deliberate indifference.”). Smith’s disagreement with the type or
timing of medical services is insufficient to demonstrate deliberate
indifference. See Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991).
Further, he cannot show that he was substantially harmed as a result of the
delay between his injury and the x-ray diagnosis. See Mendoza v. Lynaugh,
989 F.2d 191, 195 (5th Cir. 1993). Because the summary judgment evidence
does not support a claim that Keyes, Wexford, or any other medical care
provider was deliberately indifferent to Smith’s serious medical needs, there
was also no basis for liability against Hatten. Therefore, Smith has failed to
show that the district court erred in granting the defendants’ motions for
summary judgment on the Eighth Amendment claim.



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                                 No. 16-60080

      Smith does not challenge the district court’s determination that he failed
to state a due process claim against Dr. Woodall and Wexford. This issue is
therefore abandoned. See Brinkmann v. Dallas County Deputy Sheriff Abner,
813 F.2d 744, 748 (5th Cir. 1987). To the extent Smith argues that he was
seeking the reimbursement of his $6 pursuant to state law, his argument is
belied by the record. Because Smith did not raise a state law claim in the
district court, we will not consider the claim on appeal. See Stewart Glass
& Mirror, Inc. v. U.S. Auto Glass Discount Centers, Inc., 200 F.3d 307, 316-17
(5th Cir. 2000).
      Accordingly, the district court’s judgment is AFFIRMED.




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