     Case: 12-10062     Document: 00511965841         Page: 1     Date Filed: 08/22/2012




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

                                                                            FILED
                                                                          August 22, 2012
                                     No. 12-10062
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

ANTWON PARKER,

                                                  Plaintiff - Appellant

v.

KIMBERLY FISK, Physician Assistant; MR. NFN MARKEZ, Extortion Officer,

                                                  Defendants - Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 2:11-CV-116


Before BARKSDALE, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM:*
        Antwon Parker, Texas prisoner # 1311517, proceeding pro se and in forma
pauperis, challenges the failure-to-state-a-claim dismissal of his 42 U.S.C. § 1983
civil-rights action. Parker contends: Fisk failed to respond to his medical needs;
she retaliated against him for complaining about her; and, post-judgment, he
should have been allowed to amend his complaint.
        After accepting plaintiff’s factual allegations as true, if no relief can be
granted as a matter of law, an action may be dismissed. Harris v. Hegmann, 198

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 12-10062    Document: 00511965841      Page: 2   Date Filed: 08/22/2012

                                  No. 12-10062

F.3d 153, 156 (5th Cir. 1999). To establish a claim of unconstitutional medical
care, Parker must show Fisk acted with deliberate indifference to his serious
medical needs. See Gobert v. Caldwell, 463 F.3d 339, 345-46 (5th Cir. 2006).
Parker’s pleadings reflect that he received frequent and responsive medical care.
He concedes he was given a bottom bunk and has not been required to work.
Though he was not given the bottom-row cell restriction he requested, he was
provided medication and other restrictions. Parker’s claims about the care and
attention provided by Fisk show merely a disagreement about what care was
proper. Such allegations do not state a claim of deliberate indifference. See id.
at 346.
      In claiming Fisk retaliated against him, Parker contends Fisk hindered his
efforts to obtain medical records and temporarily discontinued his pain
medication. Obviously, prison officials may not retaliate against an inmate for
exercising the right to complain about misconduct or to gain access to the courts.
Woods v. Smith, 60 F.3d 1161, 1164 (5th Cir. 1995). Understandably, our court
regards such retaliation claims “with skepticism”.        Id. at 1166.    Parker’s
pleadings indicate that prison officials responded to his record requests and do
not allege specific facts to show that Fisk was responsible for any delay in record
production. And, Parker’s expressions of annoyance with the prison bureaucracy
do not constitute specific factual allegations showing he was denied his medical
records as a result of an unconstitutional motive. See id.
      Concerning the two-month denial of pain medication, the pleadings reflect
that Fisk had offered to give Parker new pain medications but that Parker only
sought the bottom-row restriction. The pleadings also reflect that prison officials
believed Parker had refused pain medications. Moreover, Parker alleged no
specific fact that would show Fisk was personally responsible for discontinuing
such medication or that she refused to reorder it. In short, Parker’s allegations,
if true, do not establish that the interruption in his pain medication arose from
retaliation or any other unconstitutional motivation.

                                        2
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                                    No. 12-10062

          Our court reviews for abuse of discretion the district court’s denial of
Parker’s post-judgment motion to amend; the denial will stand if Parker “has not
clearly established that he could not reasonably have raised the new matter
prior to the trial court’s merits ruling”. Vielma v. Eureka Co., 218 F.3d 458, 468
(5th Cir. 2000). Parker fails to show he could not have amended his complaint
before dismissal.      Moreover, his proposed amended complaint is virtually
indistinguishable from his original complaint; therefore it would have been
futile.
          Finally, our consideration of Parker’s claims against Markez–and Parker’s
challenge to the severance of those claims–is barred by the final disposition of
those claims in Parker v. Markez, No. 2:11-CV-285 (N.D. Tex. 9 Jan 2012), and
Parker v. Markez, No. 12-10047 (5th Cir. 8 Feb. 2012) (dismissing appeal).
          AFFIRMED.




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