     Case: 08-60867     Document: 00511179398          Page: 1    Date Filed: 07/20/2010




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

                                                 FILED
                                                                            July 20, 2010
                                     No. 08-60867
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

TIMOTHY G PRYER

                                                   Plaintiff-Appellant

v.

R. WALKER, Doctor/Health Services Administrator at CMCF III;
SHARON PAIGE, Captain, Central MS Correctional Facility III;
DR. JOSEPH BLACKSTON; CORRECTIONAL HEALTH SERVICE, INC.;
WEXFORD HEALTHCARE RESOURCES; COMMISSIONER
CHRISOPHER EPPS; MARGARET BINGHAM


                                                   Defendants-Appellees


                    Appeal from the United States District Court
                      for the Southern District of Mississippi
                              USDC No. 3:06-CV-588


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Timothy G. Pryer, Mississippi prisoner # 115393, appeals the district
court’s dismissal of his 42 U.S.C. § 1983 complaint as frivolous under 28 U.S.C.
§ 1915(e)(2)(B)(i) and for failure to state a claim. Because the district court



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-60867    Document: 00511179398 Page: 2        Date Filed: 07/20/2010
                                 No. 08-60867

dismissed Pryer’s claims as both frivolous and for failure to state a claim, review
is de novo. See Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005).
      Pryer’s claim of deliberate indifference to his medical needs was properly
dismissed. Claims of unsuccessful medical treatment are insufficient to give rise
to a claim of deliberate indifference. Varnado v. Lynaugh, 920 F.2d 320, 321
(5th Cir. 1991). Moreover, the question whether certain diagnostic studies or
forms of treatment are indicated is a “classic example of a matter for medical
judgment.” Estelle v. Gamble, 429 U.S. 97, 107 (1976). Although a medical
decision not to order certain testing or alter a treatment regime may form the
basis of a state medical malpractice claim, the decision “does not represent cruel
and unusual punishment.” Id.
      Pryer’s claim of sexual abuse was properly dismissed because, even if it is
assumed that a female prison guard rubbed his chest and made comments about
his hair and chest during the performance of his electrocardiogram, Pryer has
not alleged sufficiently serious assaultive behavior or resulting injury to show
a constitutional deprivation. See Boddie v. Schnieder, 105 F.3d 857, 860-61 (2d
Cir. 1997). Isolated, unwanted touchings by prison employees are despicable
and may form the basis of a state tort action, but they “do not involve a harm of
federal constitutional proportions as defined by the Supreme Court.”               Id.
      Pryer’s claim of retaliation was properly dismissed because he has not
stated a valid claim for retaliation under § 1983 against any defendant. See
Jones v. Greninger, 188 F.3d 322, 324)25 (5th Cir. 1999); Woods v. Smith, 60
F.3d 1161, 1166 (5th Cir. 1995); Ruiz v. United States, 160 F.3d 273, 275 (5th
Cir. 1998).
      The district court’s judgment is AFFIRMED.




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