     Case: 12-10922       Document: 00512321445           Page: 1    Date Filed: 07/25/2013




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

                                                                              FILED
                                                                             July 25, 2013
                                     No. 12-10922
                                   Summary Calendar                          Lyle W. Cayce
                                                                                  Clerk

TRACY JO RHINE,

                                                   Plaintiff-Appellant

v.

CPL. ELLISON; C.O. JACKSON; DR. SCHMIDT; C.O. CERVANTIZ; SGT.
RUSSELL,

                                                   Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:11-CV-76


Before JOLLY, DeMOSS, and ELROD, Circuit Judges.
PER CURIAM:*
       Tracy Jo Rhine, now former federal prisoner # 38612-177, appeals the
partial dismissal of her 42 U.S.C. § 1983 complaint against Dr. Schmidt,
Corporal Ellison, Corrections Officer Jackson, and Corrections Officer
Cervantez for the denial of medical treatment while she was a federal pretrial
and postconviction detainee. The district court dismissed her claims with


       *
         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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 12-10922

prejudice pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to
state a claim upon which relief may be granted.
      We review de novo a dismissal under Rule 12(b)(6). Frame v. City of
Arlington, 657 F.3d 215, 222 (5th Cir. 2011) (en banc), cert. denied, 132 S. Ct.
1561 (2012). To state a claim, “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) (internal quotation marks and
citations omitted).
      A prison official can be found liable under the Eighth and Fourteenth
Amendments for the denial of adequate medical care if he is aware of and
disregards a substantial risk of serious harm to the convicted prisoner, Farmer
v. Brennan, 511 U.S. 825, 834, 837 (1994), or pretrial detainee, Hare v. City of
Corinth, Miss., 74 F.3d 633, 639, 650 (5th Cir. 1996) (en banc). Review of
whether Rhine stated a claim for the denial of adequate medical care is limited
to her complaint, more definite statement, and the medical records she
attached to her more definite statement. See Kennedy v. Chase Manhattan
Bank USA, NA, 369 F.3d 833, 839 (5th Cir. 2004).
      Although Rhine alleged sufficient facts from which it could be inferred
that Ellison, Jackson, and Cervantez knew that Rhine believed her shoulder
was hurt, her allegations do not permit the inference that these defendants
knew that her shoulder injury posed a substantial risk of serious harm or that
delaying medical attention would result in a substantial risk of serious harm.
See Rogers v. Boatright, 709 F.3d 403, 410 (5th Cir. 2013). Her allegations and
the medical records she attached to her more definite statement indicate that
Dr. Schmidt referred her for treatment of her shoulder and stated that another
physician was the treating physician for her knee and back.             Thus, her
allegations do not permit the inference that Dr. Schmidt disregarded a


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                                No. 12-10922

substantial risk of serious harm. See id. The delays she experienced in
receiving medical treatment do not state a constitutional violation because she
did not allege facts from which it could be inferred that Dr. Schmidt knew the
delays would result in substantial harm or that the delays in fact resulted in
substantial harm. See id.
      The judgment of the district court is AFFIRMED.




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