Wesley Everett v. Chris Baca , 514 F. App'x 520 ( 2013 )

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     Case: 11-40716       Document: 00512152945         Page: 1     Date Filed: 02/22/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT  United States Court of Appeals
Fifth Circuit
FILED
February 22, 2013
No. 11-40716
Summary Calendar                        Lyle W. Cayce
Clerk
WESLEY LEE EVERETT,
Plaintiff-Appellant
v.
CHRIS BACA, Practice Manager; ROBERT BEHRNS, Provider M.D., also
known as Robert Bebens; DR. ALAN ZOND, Provider; TERESA POPE,
Defendants-Appellees
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:11-CV-27
Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
Wesley Lee Everett, Texas prisoner # 321293, appeals the district court’s
dismissal of his

42 U.S.C. § 1983

 action pursuant to 18 U.S.C. § 1915A(b)(1),
arguing that the district court erred in dismissing his claim that the defendants
retaliated against him by discontinuing a prescription for Nortriptyline and
refusing to provide medical boots that he alleged were necessary due to his
osteoarthritis, demonstrating deliberate indifference.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-40716
A review of Everett’s prison medical records indicates that he received
extensive care, that prison physicians determined his Nortriptyline prescription
should be discontinued, and that he did not have a need for medical boots.
Everett’s disagreement with this medical treatment is insufficient to establish
an unconstitutional denial of medical care. See Gobert v. Caldwell,

463 F.3d 339

,
346 (5th Cir. 2006). Even if the discontinuation of the prescription or the denial
of medical boots amounted to medical malpractice or negligence, it would be
insufficient to establish a constitutional violation. See

id.

 Because the medical
records do not indicate that the defendants refused to treat Everett, ignored his
complaints, or intentionally treated him incorrectly, the district court did not err
in dismissing Everett’s claim. See Domino v. Tex. Dept. of Criminal Justice,

239 F.3d 752

, 756 (5th Cir. 2001).
For the first time on appeal, Everett challenges the policy of the Texas
Department of Criminal Justice on orthopedic footwear and requests production
of various documents. This court will not consider an issue that a party fails to
raise in the district court absent extraordinary circumstances, such as when the
issue involved is a pure question of law and a miscarriage of justice would result
from the failure to consider it. AG Acceptance v. Veigel,

564 F.3d 695

, 700 (5th
Cir. 2009); Leverette v. Louisville Ladder Co.,

183 F.3d 339

, 342 (5th Cir. 1999).
According to Everett, the defendants retaliated against him for giving
Nurse Pope a threatening note by denying his prescription and medical boots.
Everett has not shown that he has a constitutional right to give a threatening
note to Nurse Pope. See, e.g., Morris v. Powell,

449 F.3d 682

, 684 (5th Cir. 2006)
(holding that prison official may not retaliate against prisoner for filing
grievances); Jackson v. Cain,

864 F.2d 1235

, 1248 (5th Cir. 1989) (holding that
inmates have certain First Amendment rights, such as the right to file
grievances, as long as they are not inconsistent with an inmate’s status and do
not adversely affect a legitimate state interest). Therefore, he failed to allege or
2
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No. 11-40716
show that the defendants retaliated against him for exercising a constitutional
right. See McDonald v. Steward,

132 F.3d 225

, 231 (5th Cir. 1998).
Everett asserts that the district court abused its discretion in denying his
motion to amend his complaint to add a claim against additional defendants,
including Assistant Warden Lester and others, that they failed to protect him
from harm threatened by other inmates, failed to respond to his grievance
raising this issue, and continued to house him with inmates who had threatened
him. Because the claims in the supplemental complaint did not stem from the
original cause of action, the district court did not abuse its discretion in denying
the motion as the inclusion of supplemental claims would have unduly
complicated the instant case. See Griffin v. County Sch. Bd. of Prince Edward
County,

377 U.S. 218

, 226 (1964); Burns v. Exxon Corp.,

158 F.3d 336

, 343 (5th
Cir. 1998).
Finally, Everett contends that the magistrate judge erred in denying his
motion for appointment of counsel. Because Everett has not shown that this
case presents exceptional circumstances, he has not shown that the district court
abused its discretion in denying his motion for appointment of counsel. See
Jackson v. Cain,

864 F.2d 1235