     Case: 13-60152      Document: 00513074467         Page: 1    Date Filed: 06/10/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 13-60152                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
BENNIE WARD,                                                                June 10, 2015
                                                                           Lyle W. Cayce
              Plaintiff - Appellant                                             Clerk

v.

MARSHALL L. FISHER; DR. LORENZO CABE; LISA TUCKER;
MISSISSIPPI DEPARTMENT OF CORRECTIONS,

              Defendants - Appellees




                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 4:12-CV-106


Before STEWART, Chief Judge, and SOUTHWICK and COSTA, Circuit
Judges.
PER CURIAM:*
       Mississippi prisoner Bennie Ward appeals the district court’s dismissal
of his 42 U.S.C. § 1983 suit for failure to state a claim upon which relief may
be granted. We AFFIRM the dismissal of his claim for inadequate medical
treatment but REVERSE the dismissal of his claim for retaliation and
REMAND for further proceedings.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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               FACTUAL AND PROCEDURAL BACKGROUND
        Between 1999 and 2001, Ward’s head, face, and neck began to itch
significantly while he was incarcerated at the Marshall County Correctional
Facility. He eventually received the medication Mycolog, a combination of two
ointments. It did not cure Ward’s condition but made him “itch-free.” Ward
was treated with Mycolog until 2011 when defendant Dr. Lorenzo Cabe and
another prison doctor told him that the ointment would no longer be provided
due to cost. Ward was then treated with other medications that did not work
as well but provided some relief from the itching.        Ward asked to see a
dermatologist, but his requests were denied.
        In April 2012, while housed at the Alcorn County Regional Correctional
Facility, Ward filed a grievance regarding his medical care. Around the end of
May or beginning of June, Ward claims that one nurse at Alcorn told him, on
behalf of defendant nurse Lisa Tucker, that if he persisted in requesting a
dermatologist he would be transferred from Alcorn to Parchman. On June 27,
after submitting a medical request concerning the itching, Ward was treated
at Parchman. While there, Tucker told the doctor that she was moving Ward
from Alcorn to Parchman until his itching was resolved.     The following week,
Ward was transferred to Parchman, where he remained for approximately 90
days.
        On the day Ward was moved to Parchman, Dr. Cabe performed biopsies
of Ward’s head and arm that were painful and caused bleeding. Results from
the biopsies showed that Ward had an “allergic component.”            Dr. Cabe
prescribed another medication that, according to Ward, “took the edge off” but
was not as effective as Mycolog. In August, while being seen by Dr. Cabe, Ward
asked Tucker if the medical hold that was keeping him at Parchman was going


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                                  No. 13-60152
to be removed. Tucker told him it would be removed, but that if he complained
again about the itching, she would move him back to Parchman.
      Ward filed a Section 1983 claim in the United States District Court for
the Northern District of Mississippi alleging inadequate medical care and
retaliation.   Before the defendants answered, the district court dismissed
Ward’s claims under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim,
and counted the dismissal as a Section 1915(g) strike. The court concluded the
facts alleged did not support a constitutional claim for the denial of medical
treatment.     It found that Ward had received treatment for his medical
condition many times over the years with varying degrees of success, and that
Ward simply disagreed with the course of treatment. As to the retaliation
claim, the district court concluded that although Ward did engage in the
constitutionally protected activity of seeking medical treatment, he had shown
only his personal belief that he was a victim of retaliation. The court found
that his transfer to Parchman was not retaliation but an attempt to determine
the root cause of his problem and to plot a course for treating it. Ward now
appeals.
                                 DISCUSSION
      This court reviews a dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii) de
novo, applying the same standard used to review dismissals under Federal
Rule of Civil Procedure 12(b)(6). Bradley v. Puckett, 157 F.3d 1022, 1025 (5th
Cir. 1998). To survive a motion to dismiss under Rule 12(b)(6), a “complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has
facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the


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misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “The plausibility
standard is not akin to a ‘probability requirement,’ but it asks for more than a
sheer possibility that a defendant has acted unlawfully.” Id. While a “pro se
complaint is to be construed liberally with all well-pleaded allegations taken
as true . . . [it] must set forth facts giving rise to a claim on which relief may
be granted.” Johnson v. Atkins, 999 F.2d 99, 100 (5th Cir. 1993) (citation
omitted).
       Ward argues the defendants acted with deliberate indifference to his
medical needs by subjecting him to painful and unnecessary biopsies, refusing
to allow him to see a dermatologist, discontinuing the use of Mycolog due to
cost, and failing to replace his prescription for Mycolog with an effective course
of treatment. Ward also argues his transfer to Parchman was retaliation for
asserting his constitutional right to medical treatment. 1


I.     Deliberate Indifference
       “A prison official violates the Eighth Amendment’s prohibition against
cruel and unusual punishment when his conduct demonstrates deliberate
indifference to a prisoner’s serious medical needs, constituting an ‘unnecessary
and wanton infliction of pain.’” Easter v. Powell, 467 F.3d 459, 463 (5th Cir.
2006) (quoting Wilson v. Seiter, 501 U.S. 294, 297 (1991)). “[A] prison inmate
can demonstrate an Eighth Amendment violation by showing 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 for any serious medical needs.” Sama v. Hannigan, 669 F.3d


       1 Ward also raises claims under the Americans with Disabilities Act and the Privileges
and Immunities Clause for the first time on appeal. Since these claims were not raised at
the district court, we decline to consider them here. See Stewart Glass & Mirror, Inc. v. U.S.
Auto Glass Discount Ctrs., Inc., 200 F.3d 307, 316-17 (5th Cir. 2000).

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585, 590 (5th Cir. 2012) (citation and quotation marks omitted). “Unsuccessful
medical treatment, acts of negligence, or medical malpractice do not constitute
deliberate indifference, nor does a prisoner’s disagreement with his medical
treatment, absent exceptional circumstances.” Gobert v. Caldwell, 463 F.3d
339, 346 (5th Cir. 2006) (citations omitted).
      The facts alleged in Ward’s complaint do not rise to the level of deliberate
indifference. The biopsies performed by Dr. Cabe after Ward’s request for
medical treatment resulted in a partial diagnosis. Thus, though painful, the
biopsies were not an “unnecessary and wanton infliction of pain.”           Ward
disagrees that the biopsies were necessary, but a “prisoner’s disagreement with
his medical treatment” does not constitute deliberate indifference. Id. The
claim that the defendants failed to refer Ward to a dermatologist also does not
constitute deliberate indifference. A claim by an inmate that he “was not
afforded a doctor who specialized in the treatment” of the medical condition at
issue “does not, of itself, state a claim for deliberate indifference.” Green v.
McKaskle, 788 F.2d 1116, 1127 (5th Cir. 1986).
      Ward also alleges that prison medical personnel discontinued the use of
Mycolog due solely to cost. A panel of this court held that a “denial or delay of
necessary medical treatment for financial or other improper motives not based
on medical reasons may constitute an Eighth Amendment violation.” Hanna
v. Corr. Corp. of Am., 95 F. App’x 531, 532 (5th Cir. 2004).           This non-
precedential holding properly focused both on necessary treatment and
decisions based on medical reasons. “The deliberate indifference standard . . .
does not guarantee prisoners the right to be entirely free from the cost
considerations that figure in the medical-care decisions made by most non-
prisoners in our society.” Morris v. Livingston, 739 F.3d 740, 748 (5th Cir.)
cert. denied, 134 S. Ct. 2734 (2014) (citations and quotation marks omitted).


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“[F]ailure to receive the most effective treatment cannot form the basis of
deliberate indifference but, rather, sounds in negligence.” Gobert, 463 F.3d at
350 n.33.
       Ward’s allegations that the defendants refused to treat him, ignored his
complaints, or intentionally treated him incorrectly, fail under the deliberate
indifference standard. See Sama, 669 F.3d at 590. At most, Ward states a
claim for negligence or medical malpractice, which, under our precedent, does
not constitute deliberate indifference. Gobert, 463 F.3d at 346. The district
court’s dismissal of Ward’s Eighth Amendment deliberate indifference claims
was proper.


II.    Retaliation
      “To state a valid claim for retaliation under [S]ection 1983, a prisoner
must allege (1) a specific constitutional right, (2) the defendant’s intent to
retaliate against the prisoner for his or her exercise of that right, (3) a
retaliatory adverse act, and (4) causation.” Hart v. Hairston, 343 F.3d 762, 764
(5th Cir. 2003) (citation and quotation marks omitted).
       Ward’s claim of a right to adequate medical treatment satisfies the first
element. As to the second, Ward’s allegations that Tucker threatened him with
“being moved from [Alcorn] to Parchman if [he] persisted in see[ing] a specialist
for [his] condition” and “intimidat[ed] [him] to keep [him] from exercising a
legal right to adequate medical care,” plausibly allege an “intent to retaliate”
against him for the exercise of his constitutional rights. On the third element,
a claim that an inmate was transferred to a more dangerous prison in
retaliation for an exercise of a constitutional right will support a Section 1983
claim. Morris v. Powell, 449 F.3d 682, 687 (5th Cir. 2006) (citation omitted).
Though Ward does not specifically state that Parchman is more dangerous


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than Alcorn, that can reasonably be inferred based on Ward’s description of
Tucker’s acts as threats and intimidation.
      As to the fourth element, an inmate may prove causation by alleging “a
chronology of events from which retaliation may plausibly be inferred.” Woods
v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995) (citation and quotation marks
omitted). The complaint details that, in April 2012, Ward filed a grievance
regarding his medical care. At the end of May or beginning of June, he was
told, on behalf of Tucker, that if he persisted in trying to see a dermatologist,
he would be moved to Parchman. On June 27, pursuant to a medical request
submitted by Ward, he was treated at Parchman. During this visit, Tucker
told the doctor she was moving Ward to Parchman until his itching was
resolved.   One week later, Ward was transferred to Parchman. While at
Parchman, Ward asked Tucker if the medical hold keeping him at Parchman
would be removed.      She responded that it would be removed, but if he
complained about his itching again, she would move him back to Parchman.
      Pro se complaints are held to “less stringent standards than formal
pleadings drafted by lawyers.” Hale v. King, 642 F.3d 492, 499 (5th Cir. 2011)
(citation and quotation marks omitted).         There certainly may be other
explanations for the transfer to Parchman, but at this point we are considering
only the pleadings. Ward has sufficiently alleged “a chronology of events from
which retaliation may plausibly be inferred.” See Woods, 60 F.3d at 1166.
      The dismissal of Ward’s deliberate indifference claim is AFFIRMED.
The dismissal of Ward’s retaliation claim is REVERSED and the cause is
REMANDED for further proceedings.




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