     Case: 09-11044 Document: 00511355125 Page: 1 Date Filed: 01/19/2011




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

                                                 FILED
                                                                          January 19, 2011
                                     No. 09-11044
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

TROY L. BISHOP,

                                                   Plaintiff-Appellant

v.

DR. DAVID KARNEY, Psychiatrist Clinical Director; MS. SCOTT, Property
Officer; MIKE ROWLAND,

                                                   Defendants-Appellees


                    Appeal from the United States District Court
                         for the Northern District of Texas
                               USDC No. 2:06-CV-167


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Troy L. Bishop, Texas prisoner # 688987, appeals the summary-judgment
dismissal of his 42 U.S.C. § 1983 complaint. In his complaint, he alleged that
Dr. David Karney discharged and transferred him out of the Step Down
Program, a program for aggressive inmates who are a frequent danger to
themselves, in retaliation for his previous litigation against the prison medical
staff. Bishop also contended that Karney, in discharging him from the program,


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-11044

was deliberately indifferent to his health and safety and treated him differently
than other similarly situated prisoners.
      With regard to Zonia Scott, Bishop averred that she confiscated his “self-
help law books” in retaliation for his having filed a lawsuit against friends and
co-workers. He alleged that Rowland ordered “chemical agents” to be sprayed
onto his person in retaliation for his having filed a lawsuit and for filing a
grievance.
      We review a grant of summary judgment de novo. Dillon v. Rogers, 596
F.3d 260, 266 (5th Cir. 2010). “The court shall grant summary judgment if the
movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” F ED. R. C IV. P. 56(a). When
considering whether to grant summary judgment, a court may not determine the
credibility of a witness. International Shortstop, Inc. v. Rally’s Inc., 939 F.2d
1257, 1263 (5th Cir. 1991).
      As an initial matter, Bishop does not address the basis for the district
court’s dismissal of his claims against Rowland and Scott or the dismissal of his
due process claim. Thus, the claims are deemed abandoned. See Hughes v.
Johnson, 191 F.3d 607, 613 (5th Cir. 1999).
      Bishop first avers that the district court improperly resolved factual
disputes in granting summary judgment.          He contends that his affidavit
“squarely contradicts” the defendants’ summary judgment evidence. Bishop’s
argument is entirely conclusional. Bishop does not identify the “factual disputes”
or the alleged contradictions. This court is not required to search the record to
find a factual or legal basis for an issue. United States v. Brace, 145 F.3d 247,
255 (5th Cir. 1998) (en banc).
      With regard to the retaliation claim against Karney, Bishop argues that he
established a genuine issue of material fact with regard to whether Karney’s
decision to transfer him from the Step Down Program was motivated by



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                                   No. 09-11044

retaliatory animus. However, he fails to adequately address the district court’s
alternative finding that Karney was entitled to qualified immunity.
      A qualified immunity defense alters the usual summary judgment burden
of proof. See Michalik v. Hermann, 422 F.3d 252, 262 (5th Cir. 2005). Once an
official pleads the defense, the burden then shifts to the plaintiff, who must rebut
the defense by establishing a genuine fact issue as to whether the official’s
allegedly wrongful conduct violated clearly established law. Id.
      The qualified immunity defense has two prongs: whether an official’s
conduct violated a constitutional right of the plaintiff; and whether the right was
clearly established at the time of the violation. Manis v. Lawson, 585 F.3d 839,
843 (5th Cir. 2009). A court may rely on either prong of the defense in its
analysis.   Id.   If the defendant’s actions violated a clearly established
constitutional right, the court then asks whether qualified immunity is still
appropriate because the defendant’s actions were “objectively reasonable” in light
of “law which was clearly established at the time of the disputed action.” Collins
v. Ainsworth, 382 F.3d 529, 537 (5th Cir. 2004) (citations omitted). To be clearly
established for purposes of qualified immunity, the contours of the right must be
sufficiently clear that a reasonable official would understand that what he is
doing violates that right. Brown v. Miller, 519 F.3d 231, 236 (5th Cir. 2008). The
unlawfulness of the defendant’s actions must have been readily apparent from
sufficiently similar situations, but it is not necessary that the defendant’s exact
acts have been illegal. Id. at 236-37. In essence, a plaintiff must allege facts
sufficient to demonstrate that no reasonable officer could have believed his
actions were proper. Babb v. Dorman, 33 F.3d 472, 477 (5th Cir. 1994).
      Here, the district court determined that Karney’s action, even if based on
erroneous judgment, was objectively reasonable entitling him to qualified
immunity.     Bishop’s argument on this point consists of only boilerplate
recitations of law and a statement that because Karney “acted as a private
contractor, under color of state law of Texas,” he was not entitled to qualified

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                                   No. 09-11044

immunity. Karney, in his affidavit stated, that he was a licensed psychiatrist
who worked for the Texas Department of Criminal Justice under a personal
services contract with the Texas Tech University Health Sciences Center. A
private doctor under contract with a state prison to provide medical care to
prisoners is considered a state actor because his action in providing medical care
to prisoners is fairly attributable to the state. See West v. Atkins, 487 U.S. 42,
49-50, 54-57 (1988).
      Accordingly, Karney was a state actor entitled to the protections of
qualified immunity.    Moreover, Bishop provides no challenge to the district
court’s explicit finding that Karney’s action of transferring him off the Step Down
Program was objectively reasonable so as to entitle him to qualified immunity.
We affirm the district court’s dismissal of Bishop’s retaliation claim against
Karney on the basis that he was entitled to qualified immunity.
      Bishop contends that Karney’s action in transferring him out of the Step
Down program exhibited deliberate indifference to his health and safety. Prison
officials violate the constitutional prohibition against cruel and unusual
punishment when they demonstrate deliberate indifference to a prisoner’s serious
medical needs. Wilson v. Seiter, 501 U.S. 294, 297 (1991). Deliberate indifference
encompasses only unnecessary and wanton infliction of pain repugnant to the
conscience of mankind. Estelle v. Gamble, 429 U.S. 97, 105-06 (1976).
      Bishop’s transfer from the Step Down Program did not result in a denial
of medical treatment. The record reflects that Bishop received numerous medical
visits and ongoing mental health treatment for his self-mutilation. As such,
Bishop has failed to establish a genuine issue of material fact as to his deliberate
indifference claim.
      In sum, the record reflects that Bishop has failed to raise genuine issues
of material fact as to his retaliation and his deliberate indifference claims.
Accordingly, the district court’s judgment is AFFIRMED, and Bishop’s motion for
appointment of counsel is DENIED as moot.

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