     Case: 17-10382      Document: 00514548879         Page: 1    Date Filed: 07/10/2018




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

                                    No. 17-10382
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                          July 10, 2018
                                                                           Lyle W. Cayce
DELBERT GLEN ROGERS,                                                            Clerk


                                                 Plaintiff-Appellant

v.

DOCTOR MASSEY; SHELLY COLEMAN; KITT BYRD; LORENE LAFAVE,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 2:14-CV-216


Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
       Delbert Glen Rogers, Texas prisoner # 657580, appeals the summary
judgment in favor of the defendants in his 42 U.S.C. § 1983 action asserting
claims related to burns he received from heating pads during treatment of an
exercise injury.      Rogers claimed that the defendants were deliberately
indifferent to his serious medical needs in violation of the 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 17-10382

The district court determined that the defendants were entitled to qualified
immunity.
      According to Rogers, the defendants were not entitled to qualified
immunity because he sued them in their individual capacities and because they
violated professional norms and their employer’s mission statement. He also
contends that they were not entitled to qualified immunity because they
violated the Eighth Amendment.
      We review a summary judgment de novo. Dillon v. Rogers, 596 F.3d 260,
266 (5th Cir. 2010). A movant is entitled to summary judgment if he shows
“that there is no genuine dispute as to any material fact” and he is “entitled to
judgment as a matter of law.” FED. R. CIV. P. 56(a). However, a qualified
immunity defense alters the typical summary judgment burden of proof in
that, once the defense is pleaded, the burden shifts to the plaintiff to rebut the
defense by establishing a genuine fact issue as to whether the defendant’s
allegedly wrongful conduct violated a clearly established constitutional right.
Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010).
      Inmates have a clearly established Eighth Amendment right against
cruel and unusual punishment by prison officials that includes the right to be
free from deliberate indifference to serious medical needs. See U.S. CONST.
amend. VIII; Estelle v. Gamble, 429 U.S. 97, 104 (1976). Thus, the relevant
inquiry here is whether there was a genuine issue of fact concerning Rogers’s
claims that the defendants were deliberately indifferent to his serious medical
needs. See Gamble, 429 U.S. at 104; Brown, 623 F.3d at 253. Rogers asserts
that the defendants were deliberately indifferent by providing inadequate burn
treatment, ignoring him, and taunting him.          He also alleges deliberate
indifference by nurse Kitt Byrd when she intentionally left him unattended
with heating pads on his leg.



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                                  No. 17-10382

      Liberally construed and viewed in the light most favorable to him,
Rogers’s pleadings asserted that the defendants’ failure to clean and dress his
burn wounds on eight of the 78 days between the injury and when it healed
created a substantial risk of infection. The pleadings did not allege, however,
that the defendants actually drew an inference that brief, isolated lapses in
care created a substantial risk of infection and that they wantonly disregarded
that risk. Accordingly, there was no genuine fact issue as to whether the
defendants violated the Eighth Amendment by deliberate indifference to
Rogers’s serious medical needs. See Farmer v. Brennan, 511 U.S. 825, 837, 847
(1994); Domino v. Texas Dep’t of Crim. Justice, 239 F.3d 752, 756 (5th Cir.
2001). Rogers thus failed to rebut the defendants’ qualified immunity defense.
See Brown, 623 F.3d at 253.
      Rogers’s claim that Byrd left him unattended with heating pads on his
leg similarly fails. Rogers did not allege that she actually inferred that he faced
a substantial risk of being burned and wantonly disregarded it; instead, he
described how Byrd left him unattended because she was more interested in
talking to one of the male guards than in taking care of him. An “inadvertent
failure to provide adequate medical care” does not rise to the level of
“unnecessary and wanton infliction of pain” that is “repugnant to the
conscience of mankind.” Estelle, 429 U.S. at 105-06 (internal quotation marks
and citation omitted). Accordingly, Rogers failed to meet the extremely high
standard for deliberate indifference.       See Farmer, 511 U.S. at 837, 847;
Domino, 239 F.3d at 756.
      In sum, Rogers’s dissatisfaction with the qualifications, demeanor, and
language used by the medical providers, along with his disagreement with the
course of his treatment, do not establish cruel and unusual punishment that
violates the Eighth Amendment. See Varnado v. Lynaugh, 920 F.2d 320, 321



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                                 No. 17-10382

(5th Cir. 1991). Any negligence or medical malpractice by the defendants was
not actionable under § 1983. See id. Thus, the defendants were entitled to
judgment as a matter of law and the district court properly granted summary
judgment in their favor on the issue of qualified immunity. See Brown, 623
F.3d at 253; Lynaugh, 989 F.2d at 195; FED. R. CIV. P. 56(a).
      To the extent Rogers claims for the first time that the defendants caused
him to develop a serious infection and that they were deliberately indifferent
to his serious medical needs because they failed to treat his original exercise
injury, we do not consider new claims by a plaintiff on appeal. See Leverette
v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999).
      Finally, Rogers asserts that he was denied notice and an opportunity to
respond to the defendants’ summary judgment motion and the magistrate
judge’s report and recommendation due to his frequent transfers to different
facilities and obstruction by mailroom employees. According to Rogers, if he
had been served with the filings, he would have responded that he was suing
the defendants in their individual capacities, that they violated profession
norms, and that they inflicted cruel and unusual punishment. For the reasons
discussed above, those arguments would have been unavailing. Thus, any
error was harmless.
      The judgment of the district court is AFFIRMED. Rogers’s motion to
strike the defendants’ motion to view sealed documents is DENIED.




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