                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                November 14, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-20539
                         Summary Calendar


MELVIN WARE,

                                    Plaintiff-Appellant,

versus

JAMES A. ZELLER, Senior Warden; FRED A. HODGE; IKEDINOBI U. ENI,
M.D.; MS. K. HAWKINS, R.N.; MS. A. HARDY, R.N.C.; JANET HENLY;
FRANCES CHERIAN, Doctor,

                                    Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. 4:01-CV-3378
                       --------------------

Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

     Melvin Ware, pro se Texas prisoner # 783227, filed a 42

U.S.C. § 1983 action against the University of Texas Medical

Branch (UTMB); James A. Zeller, the Senior Warden of the Ferguson

Unit; the Texas Department of Criminal Justice - Institutional

Division (TDCJ-ID); Correctional Officer Fred A. Hodges; Dr.

Ikdedinobi Eni; Dr. Frances Cherian; Janet Henly, a UTMB licensed

vocational nurse; Kathy Hawkins, a UTMB registered nurse; and

Alegra Hardy, a UTMB registered nurse.   Ware alleged that the

     *
       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this opinion should not be published and is not precedent except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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                                 -2-

defendants denied him proper medical treatment in violation of

the Eighth Amendment and various Texas laws.    He appeals the

district court’s summary judgment dismissal of his Eighth

Amendment claims and the district court’s granting of a motion to

set aside a default judgment against Dr. Cherian.     He also seeks

to supplement the record with two documents.

     A.     Summary judgment and qualified immunity

     This court reviews de novo the district court’s grant of

summary judgment under the familiar standard of FED. R. CIV.

P. 56(c).    See Cousin v. Small, 325 F.3d 627, 637 (5th Cir.

2003).    Government officials acting within their discretionary

authority are immune from civil liability for damages if their

conduct does not violate clearly established constitutional

rights of which a reasonable person would have known.     See Flores

v. City of Palacios, 381 F.3d 391, 393-94 (5th Cir. 2004).

Prison officials violate the Eighth Amendment’s prohibition

against cruel and unusual punishment when they demonstrate

deliberate indifference to a prisoner’s serious medical needs,

constituting an unnecessary and wanton infliction of pain.       See

Wilson v. Seiter, 501 U.S. 294, 297 (1991); Estelle v. Gamble,

429 U.S. 97, 104-05 (1976).

     The summary judgment evidence, viewed in the light most

favorable to Ware, shows the following: Ware began complaining of

pain in his testicle and abdomen on November 20, 1999.    Officer

Fred Hodges was alerted.    His unrebutted testimony shows that he
                            No. 04-20539
                                 -3-

informed a picket officer twice that Ware needed to go to the

infirmary, and the picket officer relayed to him that Ware needed

to walk there.    Officer Hodges told the picket officer that Ware

stated that he was unable to walk.    He took no further action.

       After Ware’s cellmate notified another officer, Ware was

taken by wheelchair to the infirmary, where he was examined by

defendants Kathy Hawkins and Janet Henly.    The medical records

indicate that Ware was in excruciating pain and was twisting from

side to side on his stretcher.    Nurse Hawkins attempted to

telephone the on-call physician, Dr. Cherian, but she was unable

to reach him.    She then contacted defendant Dr. Eni, who

instructed Nurse Hawkins to give Ware a shot of Stadol and to

monitor him for one to two hours.    Dr. Eni also directed that, if

Ware was not stable, Nurse Hawkins was to call Dr. Cherian or Dr.

Eni.    Nurse Hawkins checked on Ware’s condition periodically.    At

the end of her shift, she asked if he was feeling ill from the

medicine, and Ware replied that he was “okay,” although he also

allegedly stated that he was scared and needed to go to the

hospital.

       Nurse Hawkins was replaced by defendant Allegra Hardy, who

conducted a musculoskeletal examination of Ware and noted that

his pain had first occurred some weeks prior during exercise.

Later that evening, she discharged him to his cell with Tylenol.

She refused to allow him to use a wheelchair, but she gave him a
                           No. 04-20539
                                -4-

crutch.   Ware was given a return pass to the infirmary for the

following day, Sunday, as well as for Monday to see a physician.

     The next day, Sunday, November 21, Ware returned to the

infirmary, carried by three fellow inmates.    He explained that he

was in pain and was experiencing swelling in his testicle.   Nurse

Henly informed him that there was nothing to be done as he had an

appointment the following day with a physician, and she sent him

back to his cell.

     On Monday, November 22, 1999, Ware was finally examined by a

physician in the infirmary.   At that point, his left testicle had

swollen to four times its normal size and had become hard.   A

condition called testicular torsion was suspected.   Ware was sent

to the hospital, where the diagnosis was confirmed and where he

underwent surgery to remove the testicle.   According to Ware, he

was told by a hospital physician that if he had been treated

earlier, the testicle might have been saved.

     With respect to Officer Hodges, Ware offers no evidence

rebutting Hodges’ contention that he relayed the information to

his picket officer, who contacted the infirmary.   Thus, although

Hodges allegedly was slow to respond initially and purportedly

accused Ware of faking, he did not utterly ignore Ware’s

complaints or fail to render any assistance; thus, he did not

exhibit deliberate indifference.

     Both Nurse Hawkins and Nurse Hardy provided Ware with

treatment and followed Dr. Eni’s instructions.   Although Ware
                           No. 04-20539
                                -5-

asserts that they should have called Dr. Eni again or should have

sent him to the hospital, he has not shown that their conduct

rises to the level of deliberate indifference such that his

constitutional rights were violated.   Nurse Hardy’s dispute with

Ware over Ware’s need for a wheelchair as opposed to a crutch

does not give rise to a constitutional violation.

     With respect to Dr. Eni, it is undisputed that the nurses

did not call Dr. Eni again after his initial instructions.    Thus,

Ware has failed to show that Dr. Eni had a subjective awareness

of a serious risk of harm and that he deliberately ignored Ware’s

complaints.   Mere negligence or even malpractice will not support

a claim of deliberate indifference.    See Varnado v. Lynaugh, 920

F.2d 320, 321 (5th Cir. 1991).   As for Dr. Cherian, the

unrebutted evidence shows that Dr. Cherian received no calls

about Ware; therefore, he cannot have had any knowledge of any

risk to Ware.   Accordingly, the district court did not err in

granting summary judgment to Drs. Eni and Cherian and Nurses

Hawkins and Hardy.

     With respect to Nurse Henly, however, Ware did come forward

with evidence that she acted with deliberate indifference on

November 21, 1999.   Ware’s evidence shows, and the defendants

concede, that Nurse Henly was present during the first

examination, despite her affidavit to the contrary.   Further,

Ware provided an unrebutted declaration that Nurse Henly informed

him on more than one occasion that she knew that he needed to go
                           No. 04-20539
                                -6-

to a hospital, but that she did not want to oppose her superiors.

It is also undisputed that when Ware returned on November 21,

1999, Nurse Henly spoke to him and failed to examine him or to

make any effort to assess his condition.    She simply told him

that there was nothing that could be done for him.

     Given Nurse Henly’s knowledge of Ware’s condition, the

instructions by Dr. Eni to call if Ware did not improve, her

alleged statements to Ware that she knew that he needed to go to

the hospital, and Ware’s new complaints of pain and swelling in

his testicle, Ware has at least shown that there are genuine

issues of material fact regarding whether Nurse Henly’s failure

to provide any treatment on November 21, 1999, constituted

deliberate indifference, and whether her actions were objectively

reasonable.   See Easter v. Powell,       F.3d   , No. 04-11332,

2006 WL 2831137, at *3 (5th Cir. Oct. 5, 2006).    Accordingly, we

must vacate the judgment with respect to Nurse Henly.

     B.   State law claims/claims against UTMB and TDCJ-ID

     Ware also brought a number of state law claims, which the

district court dismissed on the ground that certain claims are

not cognizable under Texas law and that the prison personnel were

entitled to official immunity.   The district court also dismissed

all claims against Warden Zeller and UTMB and TDCJ-ID.    As Ware

does not brief these claims, he has abandoned them.     See Yohey v.

Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
                               No. 04-20539
                                    -7-

     C.     Incomplete discovery

     Ware next complains that the district court did not allow

him sufficient time for discovery.      Ware’s conclusional

assertions fail to demonstrate how the requested discovery would

have enabled him to establish a genuine issue of material fact.

See Krim v. BancTexas Group, Inc., 989 F.2d 1435, 1442 (5th Cir.

1993).    The district court committed no error in this respect.

     D.     Default judgment

     Ware next asserts that the district court erred in setting

aside the default judgment entered against Dr. Cherian.       Ware’s

contention that the district court erroneously employed FED.

R. CIV. P. 60(b) rather than FED. R. CIV. P. 55(c) is without

merit, as Rule 55(c) expressly incorporates Rule 60(b)’s

standard.    Further, the district court’s conclusion that Dr.

Cherian did not intentionally fail to answer, that he had a

meritorious defense, and that there was no prejudice to Ware, see

Effjohn Int’l Cruise Holdings, Inc. v. A&L Sales, Inc., 346 F.3d

552, 563 (5th Cir. 2003), was amply supported by the record.      The

district court did not abuse its discretion in granting Dr.

Cherian’s motion to set aside the default judgment.      See Lacy v.

Sitel Corp., 227 F.3d 290, 292 n.1 (5th Cir. 2000).

     E.     Supplementation of the record

     Finally, Ware seeks to supplement the record with two

documents.    The first is a Texas Department of Corrections

bulletin setting forth standards for prison officials to respond
                          No. 04-20539
                               -8-

to emergency requests for medical care.    As this document was not

part of the summary judgment record before the district court,

this court need not consider it.     See Topalian v. Ehrman, 954

F.2d 1125, 1131 n.10 (5th Cir. 1992).

     The second document is an order from the Texas State Board

of Medical Examiners disciplining Dr. Eni for his actions with

respect to Ware’s treatment.   This exhibit is part of the record,

as Ware submitted it in support of a Rule 60(b) motion that he

filed while his appeal was pending.    Further, although the Board

concluded that Dr. Eni had violated the standard of care and

should have recognized the symptoms of testicular torsion, this

at best shows negligence or malpractice, which is insufficient to

establish deliberate indifference.    See Varnado, 920 F.2d at 321.

     For the foregoing reasons, the judgment of the district

court is AFFIRMED with respect to all claims and defendants other

than Ware’s Eighth Amendment claims against Nurse Henly.    The

judgment is VACATED as to the Eighth Amendment claims against

Nurse Henly, and this matter is REMANDED to the district court

for further proceedings consistent with this opinion.    The motion

to supplement the record is DENIED.
