Kittelson v. Nafrawi , 112 F. App'x 946 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 14, 2004
Charles R. Fulbruge III
Clerk
No. 04-10156
Summary Calendar
BRUCE LEE KITTELSON,
Plaintiff-Appellant,
versus
ADEL NAFRAWI; STEPHEN PECK; STANFORD LEHRER; STEVEN REILLY;
LLENE MAXWELL, Licensed Vocational Nurse; CHRISTY KING,
Licensed Vocational Nurse; KAREN HORSLEY, Licensed Vocational
Nurse; BOB PREWIT, Physician’s Assistant; WILLIAM CASADY,
Licensed Vocational Nurse; WILLIAM GONZALES, Medical Director
Texas Tech University Health Science Center-CMHC; HENDRICKS
HOSPITAL; JAMES DUKE, Senior Warden; ROBERT EASON, Assistant
Warden; CARY COOK, Assistant Warden,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:02-CV-93
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Before JOLLY, HIGGINBOTHAM, and PICKERING, Circuit Judges.
PER CURIAM:*
Bruce Lee Kittelson, Texas prisoner # 818614, appeals the
magistrate judge’s dismissal of his 42 U.S.C. § 1983 civil rights
action against Adel Nafrawi, Stephen Peck, Stanford Lehrer,
Steven Reilly, Llene Maxwell, Christy King, Karen Horsley, Bob
Prewit, William Casady, James Duke, Robert Eason, Cary Cook,
*
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this opinion should not be published and is not precedent except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. 04-10156
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Hendricks Hospital, and William Gonzalez as frivolous pursuant to
28 U.S.C. §§ 1915(e)(2)(B), 1915A(b)(1), and 42 U.S.C.
§ 1997e(c)(1)-(2).
Kittelson has abandoned his claims against Stanford Lehrer,
Steven Reilly, LLene Maxwell, Christy King, Bob Prewit, William
Casady, James Duke, Robert Eason, Cary Cook, Hendricks Hospital,
and William Gonzalez by failing to argue them in his brief. See
Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
Kittelson has also abandoned his claims that: (1) the defendants
interfered with his medically prescribed treatment; (2) the
defendants retaliated against him by assigning him to work at the
garment factory and to the top floor of his dorm; (3) emergency
room doctors inserted chest tubes without anesthesia; and (4) the
defendants used excessive restraints while he was in the
hospital. See id. Moreover, Kittelson has failed to brief and,
thus, abandoned any claims arising out of his medical care prior
to September 20, or after November 2, 2001. See id.
Accordingly, the magistrate judge’s judgment dismissing the
foregoing claims and defendants is AFFIRMED.
Kittelson contends that the magistrate judge erred when she
dismissed his deliberate indifference claims as frivolous.
Specifically, Kittelson contends that despite his repeated
requests for treatment and complaints of serious breathing
difficulties, chest pain, numbness in his extremities, fever, and
migraine headaches, Drs. Nafrawi and Peck and Nurse Horsley
No. 04-10156
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deliberately delayed and denied him medical care from September
20, through November 2, 2001, resulting in severe pain and the
loss of one-third of his left lung. Kittelson also argues that
the magistrate judge erred in using his medical records to rebut
his allegations of deliberate indifference because these records
were falsified and, thus, unreliable.
The magistrate judge improperly relied on Kittelson’s
medical records to counter his complaint and Spears hearing
testimony. See Williams v. Luna, 909 F.2d 121, 124 (5th Cir.
1990). The medical records contradict Kittelson’s contention
that he was denied any treatment from September 20, through
November 2, 2001. Further, Kittelson questions the authenticity
of these records. Therefore, the magistrate judge abused her
discretion in dismissing this claim as frivolous. See Norton v.
Dimazana, 122 F.3d 286, 291 (5th Cir. 1997). Accordingly, the
magistrate judge’s judgment dismissing Kittelson’s claims against
Drs. Nafrawi and Peck and Nurse Horsley that he was delayed and
denied medical care from September 20, through November 2, 2001,
is VACATED and the case is REMANDED to the district court for
further proceedings consistent with this opinion.
Kittelson’s claim that his receipt of other inmates’
medication was negligent, medical malpractice, and illegal is not
sufficient to establish deliberate indifference. See Varnado v.
Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991). Therefore, the
magistrate judge’s judgment dismissing this claim is AFFIRMED.
No. 04-10156
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Finally, this court will not consider Kittelson’s claims
raised for the first time on appeal that (1) inmates housed in
the French M. Robertson Unit infirmary are treated differently
than those at Hendricks Hospital in violation of the Fourteenth
Amendment’s Equal Protection Clause and (2) prison officials
illegally went through and confiscated his legal materials on
September 11, 2003. See Leverette v. Louisville Ladder Co., 183
F.3d 339, 342 (5th Cir. 1999).
AFFIRMED IN PART; VACATED AND REMANDED IN PART.