     Case: 15-50982      Document: 00513934509         Page: 1    Date Filed: 03/31/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit
                                    No. 15-50982                                    FILED
                                  Summary Calendar                            March 31, 2017
                                                                               Lyle W. Cayce
                                                                                    Clerk
ROBERT J. BACK,

                                                 Plaintiff-Appellant

v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE INSTITUTIONAL
DIVISION; UNIVERSITY OF TEXAS MEDICAL BRANCH CORRECTIONAL
MANAGED HEALTH CARE; VALENCIA POLLARD; TERI SMITH,

                                                 Defendants-Appellees


                  Appeals from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:14-CV-301


Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *
       Robert J. Back, Texas prisoner # 1465630, filed a lawsuit regarding
events that took place while he was housed at the Hughes Unit of the Texas
Department of Criminal Justice – Institutional Division (TDJC). Finding no
error in the district court’s grant of summary judgment to the defendants, we
AFFIRM.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-50982

                                        I
      Back is severely disabled in his left leg and requires orthotic shoes and
knee braces to aid him in walking. In September 2012, a doctor at the Hughes
Unit referred Back to the Brace and Limb Program (BLP) for a pair of
replacement shoes, but the BLP denied the referral. Also, Back’s requests for
a subsequent storage container in which to store his disability-related
equipment, i.e., a medical box, were denied for over a year. Citing these
denials, Back alleged that the defendants violated his rights under the
Americans with Disabilities Act (ADA) and the Rehabilitation Act (RA) and
sought compensatory and punitive damages. He also alleged that defendants
were deliberately indifferent to his serious medical needs, in violation of the
Eighth Amendment, and that they violated his rights to due process and equal
protection under the law. The district court found that Back had exhausted
his ADA and RA claims, that he was a qualified disabled person, and that he
had in fact been denied a visit to the BLP and denied access to a medical box.
It determined, however, that the undisputed evidence in this case showed that
the denials were due to negligence at most, not intentional discrimination, and
dismissed Back’s claims on summary judgment. Back timely appealed.
                                        II
      As a preliminary matter, we will address the various motions that Back
has filed in this court. His motion to file a supplemental reply brief is granted.
His motion to strike the Texas Department of Criminal Justice’s (TDCJ)
appellate brief is denied. Back also seeks a temporary restraining order (TRO)
and a preliminary injunction (PI) pending appeal. This request, however, has
to do with his transfer from the Hughes Unit to the Powledge Unit and the
difficulty he has had in obtaining a medical box at the Powledge Unit. Because




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Back’s transfer to and the events at the Powledge Unit are not the subject of
the instant complaint, the motion for a TRO and a PI is denied.
                                      III
      The following is a list of the district court’s rulings that are not
specifically challenged by Back on appeal. (1) To the extent that Back sued the
defendants for damages in their official capacities, his claims under § 1983
were barred by the Eleventh Amendment. (2) To the extent that back sought
declaratory and injunctive relief under § 1983 from the defendants in their
official capacities, his claims were rendered moot by his transfer from the
Hughes Unit to the Powledge Unit. (3) Back’s § 1983 claim for a due-process
violation by Pollard and Smith in handling his prison grievances failed because
there is no constitutional right to a grievance procedure. (4) Back failed to
articulate any specific facts or present any evidence to support a claim of an
equal-protection violation.   Although we construe pro se briefs liberally,
arguments must be briefed to be preserved. See Yohey v. Collins, 985 F.2d 222,
224-25 (5th Cir. 1993). By failing to point to any error in the district court’s
reasons for these rulings, Back has abandoned any challenge to these rulings.
See Brinkmann v. Dallas Cty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987).
                                      IV
      We review a summary judgment de novo. See Cousin v. Small, 325 F.3d
627, 637 (5th Cir. 2003). Summary judgment is proper “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.” FED. R. CIV. P. 56(a). “We construe
all facts and inferences in the light most favorable to the nonmoving party
when reviewing grants of motions for summary judgment.” Dillon v. Rogers,
596 F.3d 260, 266 (5th Cir. 2010) (internal quotation marks and citation



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                                  No. 15-50982

omitted). However, “[a]t the summary judgment stage, facts must be viewed
in the light most favorable to the nonmoving party only if there is a ‘genuine’
dispute as to those facts.” See Scott v. Harris, 550 U.S. 372, 380 (2007). The
non-movant “must come forward with specific facts showing there is a genuine
issue for trial.” See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986) (internal quotation marks, citation, and emphasis omitted).
                                         A
      Title II of the ADA provides that individuals with disabilities shall not
“be denied the benefits of the services, programs, or activities of a public entity,
or be subjected to discrimination by any such entity.’”         Frame v. City of
Arlington, 657 F.3d 215, 223 (5th Cir. 2011) (quoting 42 U.S.C. § 12132).
Where the ADA prohibits discrimination by public entities, including private
employers, “[t]he RA prohibits discrimination in federally-funded programs
and activities.” Kemp v. Holder, 610 F.3d 231, 234 (5th Cir. 2010) (citing 42
U.S.C. § 12131(1) and 29 U.S.C. § 794(a)). “The RA and the ADA are judged
under the same legal standards, and the same remedies are available under
both Acts.” Kemp, 610 F.3d at 234. Thus, because the legal standards applying
to Title II of the ADA also apply to RA claims, see id., a plaintiff raises a viable
claim under either by alleging that (1) he has a qualifying disability; (2) he is
being denied the benefits of services, programs, or activities for which the
public entity is responsible, or is otherwise discriminated against by the public
entity; and (3) he is being discriminated against by reason of his disability.
Hale v. King, 642 F.3d 492, 499 (5th Cir. 2011).
      Back’s claims under the ADA and the RA stemmed from the BLP’s
September 2012 denial of a referral made by a doctor on the Hughes Unit for
replacement footwear and by the delay of more than a year in the issuance of
a medical subsequent storage box while Back was housed at the Hughes Unit.



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With respect to these claims, the district court determined that there was no
genuine dispute that Back was a qualified person under the ADA and that he
had been denied a benefit or service in each instance. After a de novo review
of the summary-judgment evidence, however, and viewing that evidence in the
light most favorable to Back, we concur with the district court that the evidence
showed, at most, that the denials in question were caused by negligence on the
part of the BLP staff who denied the referral and by confusion amongst the
Hughes Unit staff as to the procedure for obtaining a medical box. See Dillon,
596 F.3d at 266; Cousin, 325 F.3d at 637. Because Back failed to overcome
that evidence with his own evidence showing intentional discrimination that
was based on his physical disability, summary judgment was properly granted
on his ADA and RA claims. See Matsushita Elec. Indus. Co., 475 U.S. at 587;
Hale, 642 F.3d at 499; Delano-Pyle v. Victoria Cty., Tex., 302 F.3d 567, 575 (5th
Cir. 2002) (to recover on a claim for compensatory damages under the ADA or
the RA, a plaintiff must make “a showing of intentional discrimination”); Eason
v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996) (conclusory allegations are not
competent summary judgment evidence and therefore are insufficient to defeat
a motion for summary judgment).
                                        B
      Pursuant to the Eighth Amendment’s prohibition against cruel and
unusual punishment, prisoners are entitled to receive “adequate” medical care.
See Easter v. Powell, 467 F.3d 459, 463 (5th Cir. 2006). A prison official violates
the prohibition of cruel and unusual punishment if the official shows deliberate
indifference to a prisoner’s serious medical needs. See Estelle v. Gamble, 429
U.S. 97, 103-06 (1976). A prisoner must establish that prison officials “refused
to treat him, ignored his complaints, intentionally treated him incorrectly, or
engaged in any similar conduct that would clearly evince a wanton disregard



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for any serious medical needs.” Domino v. Tex. Dep’t of Crim. Justice, 239 F.3d
752, 756 (5th Cir. 2001) (internal quotation marks and citation omitted).
“Unsuccessful medical treatment, acts of negligence, or medical malpractice do
not constitute deliberate indifference.” Gobert v. Caldwell, 463 F.3d 339, 346
(5th Cir. 2006).
      The summary-judgment evidence shows that Back was seen and treated
regularly, both on the Hughes Unit and in the BLP clinic, for various medical
issues having to do with his disability. The one-time, negligent denial of a
referral by a BLP staff member, which resulted in a delay in treatment instead
of an outright denial of treatment, does not rise to the level of deliberate
medical indifference. See Gobert, 463 F.3d at 346. Additionally, although
Pollard and Smith answered Back’s grievances, neither was involved in his
medical treatment, and the evidence showed that neither had the authority to
order medical treatment, order a medical box, or refer Back to the BLP.
Without any personal involvement by those two defendants, Back’s § 1983
claims could not succeed as a matter of law. Thompson v. Steele, 709 F.2d 381,
382 (5th Cir. 1983) (“Personal involvement is an essential element of a civil
rights cause of action.”). Accordingly, Back has not shown any error in the
district court’s grant of summary judgment on his claims of deliberate medical
indifference.
                                      V
      The judgment of the district court is AFFIRMED.




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