     Case: 14-31087      Document: 00513191761         Page: 1    Date Filed: 09/14/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-31087
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        September 14, 2015
DERRICK DEWAYNE DAVIS,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellant

v.

PAT THOMAS, Medical Director at Winn Correctional Facility in her
individual capacity; ALPHONSO PACHECO; TIM WILKINSON;
CORRECTIONS CORPORATION OF AMERICA,

                                                 Defendants-Appellees


                  Appeals from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:08-CV-938


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
       Derrick Dewayne Davis, Louisiana prisoner # 126965, filed a civil rights
complaint under 42 U.S.C. § 1983 alleging that officials at the Winn
Correctional Center (WCC) had shown deliberate indifference to his serious
medical needs when they improperly administered penicillin to him. He also
filed several amended complaints regarding the adequacy of the care he


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-31087

received for his complaints of headaches and pain in his hip and lower back.
The district court dismissed the claim regarding the improper administration
of penicillin with prejudice as frivolous and for failure to state a claim, but it
retained Davis’s other claims and appointed counsel to represent Davis under
28 U.S.C. § 1915(e)(1). Counsel filed a second supplemental and amended
complaint reiterating Davis’s claims regarding his headaches, hip pain, and
lower back pain, and all of Davis’s other amended complaints were stricken.
Ultimately, the district court granted the defendants’ motion for summary
judgment and dismissed Davis’s remaining claims with prejudice. Davis now
appeals, moving for the appointment of counsel on appeal and for leave to file
his reply brief out of time. These motions are denied.
      We review the grant of a motion for summary judgment de novo. Kitchen
v. Dallas Cnty., Tex., 759 F.3d 468, 476 (5th Cir. 2014). Summary judgment is
appropriate if the record discloses “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). “A showing of deliberate indifference requires the prisoner to
submit evidence 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.”   Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006) (internal
quotation marks and citation omitted).
      In his appellate brief, Davis makes no mention of his claims regarding
the improper administration of penicillin, or the adequacy of the treatment he
received for his headaches or his hip pain.          He mentions his headaches
fleetingly in his unfiled reply brief, but, even if that brief had been timely filed,
we do not consider issues raised for the first time in a reply brief. Morin v.
Moore, 309 F.3d 316, 328 (5th Cir. 2002). Even pro se litigants must brief



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                                No. 14-31087

arguments in order to preserve them; because Davis has not addressed these
claims in his opening brief, he has abandoned them. See Hughes v. Johnson,
191 F.3d 607, 613 (5th Cir. 1999); Yohey v. Collins, 985 F.2d 222, 224-25 (5th
Cir. 1993); Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748
(5th Cir. 1987).
      The summary judgment evidence shows that just before arriving at
WCC, a full set of lumbar spine x-rays showed that Davis had degenerative
disc disease with narrowing of the disc space in the lumbosacracal area and
that he was instructed to perform light range-of-motion exercises.        Upon
arriving at WCC, Davis was given compound duty, allowed the use of a crutch
and/or a cane, given a bottom bunk, and restricted from sports activities due
to his back pain. He was seen frequently for his complaints of lower back pain,
the orders regarding the crutch and cane were changed frequently, and he was
prescribed medication to help manage the pain. Davis requested that more x-
rays be done but was told that further radiologic examination was not
indicated.   On appeal, Davis does not dispute that he was given pain
medication or that he was seen frequently for back pain. Instead, he contends
that this treatment was ineffective and asserts that his back pain continues.
He also contends that an MRI of his lower back that was ordered in 2005 still
has not been done. The document to which he refers, however, simply states
that an MRI is “the study of choice” if further information regarding the
lumbar spine discs was desired. Davis’s arguments amount to a disagreement
with the level of care that he has received. That disagreement is simply not
enough to prevail on a claim of deliberate medical indifference. See Gobert,
463 F.3d at 346; Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991).
Accordingly, the district court properly granted the defendants’ motion for




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                                  No. 14-31087

summary judgment and dismissed the claims that were raised in Davis’s
original and second supplemental and amended complaints.
      Davis devotes much of his appellate brief and his unfiled reply brief to
arguing that in January 2009, Dr. Pacheco performed an unauthorized surgery
on Davis’s pilonidal cyst at the WCC. Davis asserts that the surgery site
became badly infected and that he had to be hospitalized as a result. This
particular claim of deliberate indifference and the facts attendant to the claim
were not properly presented to the district court in the complaints that were
considered, United States v. Armstrong, 951 F.2d 626, 630 (5th Cir. 1992), and
we do not consider claims raised for the first time on appeal, Stewart Glass &
Mirror, Inc. v. U.S. Auto Glass Discount Ctrs, Inc., 200 F.3d 307, 316-17 (5th
Cir. 2000).
      Finally, Davis maintains that he received ineffective assistance from the
attorney appointed to represent him in the district court and that he believes
it is illegal for his case to have been reassigned from one district court judge to
another just a mere two weeks before the entry of judgment. As there is no
Sixth Amendment right to the effective assistance of counsel in civil litigation,
we do not consider Davis’s allegations of error by counsel. See Sanchez v. U.S.
Postal Serv., 785 F.2d 1236, 1237 (5th Cir. 1986).          With respect to the
reassignment of Davis’s case, it was authorized by statute, see 28 U.S.C. § 137,
and the record does not indicate any impermissible reason for the
reassignment.
      AFFIRMED; ALL OUTSTANDING MOTIONS DENIED.




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