     Case: 18-50855      Document: 00515181629         Page: 1    Date Filed: 10/31/2019




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

                                                                             FILED
                                    No. 18-50855                      October 31, 2019
                                  Summary Calendar
                                                                        Lyle W. Cayce
                                                                             Clerk
CHRISTOPHER DOUGLAS SIMMONS,

                                                 Plaintiff-Appellant

v.

BRYAN COLLIER, Texas Department of Criminal Justice, Executive Director;
CYTHIA TILLEY, Senior Warden Boyd Unit; PAM PACI, University of Texas
Medical Branch Manager; DEBORAH ALEMAN, University of Texas Medical
Branch Patient Assistant; MILDRED DANIEL, University of Texas Medical
Branch Nurse,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:18-CV-212


Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Christopher Douglas Simmons, Texas prisoner # 01956192, filed a 42
U.S.C. § 1983 complaint arguing that employees of the Texas Department of
Justice and the University of Texas Medical Branch were deliberately



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-50855

indifferent to his serious medical needs.      Specifically, he alleged that the
defendants denied him adequate medical care in connection with removing a
piece of paper from his right ear. As a consequence of the inadequate medical
care, Simmons asserts that he suffered hearing loss to his right ear. The
district court dismissed Simmons’s complaint, pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii), for failure to state a claim upon which relief may be granted.
      Before this court, Simmons does not challenge the district court’s
determination that the defendants were immune from suit in their official
capacities under the Eleventh Amendment. He also does not challenge the
district court’s determination that Bryan Collier, Cythia Tilley, and Pam Paci
are not liable under a theory of respondent superior. In fact, Simmons seems
to expressly abandon any appeal regarding these defendants by stating that
he “chooses not to appeal [their] personal involvement.” Thus, Simmons has
abandoned these claims on appeal. See Yohey v. Collins, 985 F.2d 222, 224-25
(5th Cir. 1993); Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d
744, 748 (5th Cir. 1987).
      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 Estelle v. Gamble, 429 U.S. 97, 104-05 (1976) (internal
quotations and citation omitted).       A prison official acts with deliberate
indifference if he “knows of and disregards an excessive risk to inmate health
or safety; the official must both be aware of facts from which the inference could
be drawn that a substantial risk of serious harm exists, and he must also draw
the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). In the case of a
claim for denial of medical care, “the facts underlying a claim of deliberate
indifference must clearly evince the medical need in question and the alleged



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                                   No. 18-50855

official dereliction.” Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985)
(internal quotation marks and citation omitted) (emphasis in original).
      The prison records and Simmons’s own recitation of the facts
demonstrate that he received ongoing medical treatment for his ear pain. As
determined by the district court, at most, Simmons alleges unsuccessful
medical treatment, acts of negligence or medical malpractice against Deborah
Aleman and Mildred Daniel. See Varnado v. Lynaugh, 920 F.2d 320, 321 (5th
Cir. 1991). His allegation that Aleman should have referred him to an ear
specialist does not amount to deliberate indifference. See Estelle v. Gamble,
429 U.S. 97, 107 (1976). Simmons has failed to show that Aleman or Daniel
ignored his complaints, refused treatment, “or engaged in any similar conduct
that would clearly evince a wanton disregard for any serious medical needs.”
See Johnson, 759 F.2d at 1238. Accordingly, the district court did not err in
dismissing his complaint for failure to state a claim upon which relief may be
granted. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In addition, the
district court did not abuse its discretion in denying Simmons’s motion for
appointment of counsel. See Cupit v. Jones, 835 F.2d 82, 86 (5th Cir. 1987).
To the extent that he moves this court for appointment of counsel, his request
is denied.
      The    district   court’s   dismissal   of   Simmons’s    complaint    under
§ 1915(e)(2)(B)(ii) counts as a strike under § 1915(g).          See Adepegba v.
Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Simmons is warned that if he
accumulates three strikes, he may not proceed in forma pauperis in any civil
action or appeal filed while he is incarcerated or detained in any facility unless
he is under imminent danger of serious physical injury. See § 1915(g)
      AFFIRMED; MOTION DENIED; SANCTION WARNING ISSUED.




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