     Case: 16-41599       Document: 00514214410         Page: 1     Date Filed: 10/27/2017



              IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT

                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                     No. 16-41599                                    FILED
                                   Summary Calendar                            October 27, 2017
                                                                                Lyle W. Cayce
                                                                                     Clerk
JAMES GORDON LEONARD,

                                                  Plaintiff - Appellant

v.

GIDEON A. DANIEL; LAURA MIDKIFF; REGINALD A. WALLACE;
UNIVERSITY OF TEXAS MEDICAL BRANCH,

                                                  Defendants - Appellees


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:13-CV-600


Before JONES, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM: *
       Proceeding pro se, James Gordon Leonard, Texas prisoner # 01790186,
challenges an adverse summary judgment, resulting in the dismissal of his 42
U.S.C. § 1983 action, which alleges two employees of the Texas Department of
Criminal Justice—Gideon A. Daniel, a physician’s assistant, and Laura
Midkiff, a registered nurse—were deliberately indifferent to his serious
medical needs. Wilson v. Seiter, 501 U.S. 294, 297 (1991). The court ruled
defendants were protected by qualified immunity. Reviewing the 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       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 16-41599

judgment de novo, we affirm. Cousin v. Small, 325 F.3d 627, 637 (5th Cir.
2003).
      In January 2013, a physician’s assistant diagnosed Leonard with a
fungal infection and prescribing him medication for 30 days. Leonard received
it in late January. On 4 February, however, he requested refills from Daniel,
and he advised the medication would be available in seven to ten days.
Leonard complained about pain from his infection and lack of medication to
Midkiff, and she responded the prescribed medication was intended to last 30
days. Leonard claims these one-time interactions with Daniel and Midkiff
violated his Eighth Amendment rights, because they were deliberately
indifferent to his medical needs, causing him substantial harm.
      In the two-prong test for assessing qualified immunity, the first prong is
whether the actor’s conduct violated a constitutional or statutory right.
Rockwell v. Brown, 664 F.3d 985, 990–91 (5th Cir. 2001) (courts permitted to
address either prong of qualified immunity analysis first). Prison officials
violate the Eighth Amendment by acting with deliberate indifference to a
prisoner’s serious medical needs. Wilson, 501 U.S. at 297. In that regard,
“[d]eliberate indifference is an extremely high standard to meet”. Domino v.
Texas Dept. of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001). “It is only
such indifference that can violate the Eight Amendment; allegations of
inadvertent failure to provide adequate medical care, or of a negligent
diagnosis, simply fail to establish the requisite culpable state of mind.” Wilson,
501 U.S. at 297 (internal quotation marks, brackets, ellipses, and citations
omitted).
      There is no support in the record for Leonard’s conclusory allegations
that defendants were deliberately indifferent and, therefore, violated the
Eighth Amendment. Id.; Hathaway v Bazany, 507 F.3d 312, 319 (5th Cir.
2007). In short, Leonard fails to establish the requisite genuine dispute of
material fact regarding the occurrence of a constitutional violation. Brown v.
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                                 No. 16-41599

Callahan, 623 F.3d 249, 253 (5th Cir. 2010) (“The plaintiff bears the burden of
negating qualified immunity, but all inferences are drawn in his favor.”). He
only establishes his dissatisfaction with the decisions made by Daniel and
Midkiff in treating his fungal infection, but such dissatisfaction does not give
rise to 42 U.S.C. § 1983 liability. Banuelos v. McFarland, 41 F.3d 232, 235 (5th
Cir. 1995) (citing Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991)).
      Leonard points to no facts showing that either Daniel or Midkiff knew
of, and disregarded, “an excessive risk to [his] health or safety” or was
otherwise subjectively reckless in treating him. Farmer v. Brennan, 511 U.S.
825, 837 (1994). Construed in a light most favorable to Leonard, the record
shows, inter alia: Daniel was not deliberately indifferent to Leonard, but
responded by ordering medication; and Leonard acknowledges Midkiff did not
ignore him, but responded to his requests for medical attention.
      In addition, as discussed above, even if Daniel and Midkiff were
negligent in their dealings with Leonard, that would be insufficient for 42
U.S.C. § 1983 liability. Wilson, 501 U.S. at 297; Stewart v. Murphy, 174 F.3d
530, 534 (5th Cir. 1999). Moreover, to the extent that Leonard asserts Daniel
or Midkiff caused a delay in his medical treatment, he fails to point to any
evidence that he suffered substantial harm as a result. Easter v. Powell, 467
F.3d 459, 463 (5th Cir. 2006).
      Leonard, therefore, fails to establish his claimed constitutional violation.
Stewart, 174 F.3d at 534 (malpractice does not give rise to a constitutional
violation); Banuelos, 41 F.3d at 235 (inmate’s disagreement with physicians
over appropriate medical care not sufficient for constitutional violation). And,
because there was no constitutional violation, there is no need to address the
second prong for our qualified-immunity analysis. E.g., Rockwell, 664 F.3d at
990–91.
      AFFIRMED.


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