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McQueen v. Karr ( 2002 )


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  •                IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-10553
Conference Calendar
BRIAN D. MCQUEEN,
Plaintiff-Appellant,
versus
CARTER KARR, M.D., Individually;
ROMALEE BARBAREE; WILLIAM E.
GONZALEZ, M.D.; LANNETTE LINTHICUM, Dr.;
ROCHELLE MCKINNEY,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:01-CV-390
--------------------
October 29, 2002
Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Brian D. McQueen, Texas prisoner # 631997, appeals the 28
U.S.C. § 1997e(c)(1) dismissal as frivolous and for failure to
state a claim of his
    42 U.S.C. § 1983
     civil rights lawsuit
asserting deliberate indifference to his serious medical needs,
specifically, his need for dental care.    The district court’s
*
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that this opinion should not be published and is not precedent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. 02-10553
-2-
dismissal is reviewed de novo.   Bazrowx v. Scott,
    136 F.3d 1053
    ,
1054 (5th Cir. 1998).
Prison officials violate the constitutional prohibition
against cruel and unusual punishment when they demonstrate
deliberate indifference to a prisoner’s serious medical needs,
constituting an unnecessary and wanton infliction of pain.
Wilson v. Seiter,
    501 U.S. 294
    , 297 (1991).     A prison official
acts with deliberate indifference “only if he knows that inmates
face a substantial risk of serious harm and disregards that risk
by failing to take reasonable measures to abate it.”     Farmer v.
Brennan,
    511 U.S. 825
    , 847 (1994); see Reeves v. Collins,
    27 F.3d 174
    , 176-77 (5th Cir. 1994) (applying Farmer to a denial-of-
medical-care claim).
A delay in medical care violates the Eighth Amendment only
if it is due to deliberate indifference and the delay results in
substantial harm.   Mendoza v. Lynaugh,
    989 F.2d 191
    , 195 (5th
Cir. 1993).   A prisoner’s disagreement with his medical treatment
is not sufficient to state a claim under § 1983.     Varnado v.
Lynaugh,
    920 F.2d 320
    , 321 (5th Cir. 1991).
The district court did not err in dismissing McQueen’s suit
as frivolous or for failure to state a claim.    The facts alleged
in the complaint do not establish the denial of medical treatment
but, as the district court determined, reveal only McQueen’s
dissatisfaction with the treatment offered him, extraction of his
injured teeth versus more expensive restorative treatment, which
No. 02-10553
-3-
is insufficient to state a claim under § 1983.      See id.     McQueen
has no right to the treatment of his choice.      Cf. id.     Moreover,
the complaint makes clear that McQueen’s failure to receive the
more expensive treatment is due to his own neglect and inability
to care for his teeth, not to any deliberate indifference by the
defendants.
To the extent that McQueen contends that he suffered a delay
in treatment between August 1999 and January 2000, his claim
fails because he has not alleged any resulting harm.          See
Mendoza,
    989 F.2d at 195
    .   Additionally, his own allegations
establish that he was warned at his first visit in June 1999 that
he would receive no further treatment until enough time had
passed to enable the dental department to determine whether his
injured teeth would be viable or die.      McQueen’s contention that
prison officials were somehow deliberately indifferent to his
medical needs by failing to advise him that extraction was an
alternative treatment option until August 2000 is without merit
given that he has never chosen to avail himself of that option.
Inasmuch as McQueen contends that he continues to suffer
pain, the district court correctly determined that his suffering
is the result of his own actions, the inability to pass the
plaque index test and his choice to decline the offered
alternative treatment of extraction.    McQueen has abandoned any
challenge to the finding that his pain is the result of his own
choice by failing to brief it.   See Brinkmann v. Dallas County
No. 02-10553
-4-
Deputy Sheriff Abner,
    813 F.2d 744
    , 748 (5th Cir. 1987); Yohey v.
Collins,
    985 F.2d 222
    , 224-25 (5th Cir. 1993).
McQueen’s appeal is without arguable merit, is frivolous,
and is therefore DISMISSED.    See Howard v. King,
    707 F.2d 215
    ,
219-20 (5th Cir. 1983); 5TH CIR. R. 42.2.   McQueen is CAUTIONED
that the pursuit of any future frivolous appeals may result in
the imposition of sanctions.
APPEAL DISMISSED; SANCTIONS WARNING ISSUED.