Boudreaux v. Reed ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-40288
Summary Calendar
JIMMIE BOUDREAUX,
Plaintiff-Appellant,
versus
UP REED, Eastham Physician,
Defendant-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:95-CV-200
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April 1, 1999
Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.
PER CURIAM:*
Jimmie Boudreaux, Texas prisoner # 412147, appeals the
summary judgment dismissal of his civil rights lawsuit, pursuant
to 42 U.S.C. § 1983. Boudreaux argues that the district court
erred in dismissing his inadequate-medical-care and retaliation
claims against the prison physician, Dr. Ronald Reed. He does
not renew his claim that Dr. Reed was deliberately indifferent to
his medical needs by forcing him to work in excess of his
physical limitations, and that claim is therefore waived. See
*
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that this opinion should not be published and is not precedent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.
No. 98-40288
-2-
Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993)(arguments
not briefed on appeal are waived).
Even if Boudreaux’s version of the facts is accepted as
true, he does not argue and has not presented any evidence that
Dr. Reed was aware that his collarbone was not healing but chose
to disregard the risk to his health caused by the unhealed
fracture, and his inadequate-medical-care claim fails. See
Farmer v. Brennan, 511 U.S. 825, 837 (1994); see also Reeves v.
Collins, 27 F.3d 174, 176 (5th Cir. 1994)(applying Farmer to
medical claims). He makes no more than a claim that Dr. Reed was
negligent and provided him with insufficient medical care, which
does not rise to the level of a constitutional violation. See
Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991).
Boudreaux’s retaliation claim is similarly unavailing
because he has not provided any qualifying summary judgment
evidence that, but for Dr. Reed’s retaliatory motive, his medical
restrictions would not have changed. See Woods v. Smith, 60 F.3d
1161, 1166 (5th Cir. 1995), cert. denied, 516 U.S. 1084 (1996).
The only evidence he presents in support of this claim is his own
conclusional assertion that he was the victim of retaliation,
which is insufficient. See Johnson v. Rodriguez, 110 F.3d 299,
310 (5th Cir.), cert. denied, 118 S. Ct. 559 (1997).
Boudreaux has not demonstrated any error in the district
court’s judgment, and it is AFFIRMED. Because the district
court’s judgment is affirmed, Boudreaux’s motion for the
appointment of counsel is DENIED as unnecessary.
JUDGMENT AFFIRMED. MOTION DENIED.