Davidson v. Texas Department of Criminal Justice , 91 F. App'x 963 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS March 19, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-41185
Summary Calendar
JIMMY ROY DAVIDSON,
Plaintiff-Appellant,
versus
TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION;
TEXAS TECH HEALTH SCIENCE CENTER; THE UNIVERSITY OF TEXAS
MEDICAL BRANCH; TIM REVELL; UNKNOWN CRAWFORD, Dr.; UNKNOWN
CLAYTON, Dr.; PAT HARRISON; UNIDENTIFIED PARTY, Step Two
Grievance Official; M. KELLY, Dr.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
(No. 6:03-CV-62)
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Before JOLLY, WIENER, and PICKERING, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Jimmy Roy Davidson, Texas state prisoner
# 612588, appeals the magistrate judge’s dismissal of his pro se
civil rights action as frivolous.1 See 28 U.S.C. § 1915A(b)(1).
Davidson’s principal contention is that the defendants-appellees
*
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this opinion should not be published and is not precedent except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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The parties consented to proceed before the magistrate judge
pursuant to 28 U.S.C. § 636(c). The magistrate judge also held
that dismissal was justified because Davidson failed to exhaust his
administrative remedies, a ruling that we need not examine.
violated his constitutional rights in refusing to treat his
hepatitis B and C by medicating him with interferon. We affirm.
Under 28 U.S.C. § 1915A(b)(1), a district court may dismiss an
IFP complaint as frivolous or for failure to state a claim. A
complaint is frivolous if it lacks an arguable basis in either law
or fact. Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997).
Prison officials violate the constitutional proscription
against cruel and unusual punishment when they are deliberately
indifferent to a prisoner’s serious medical needs, as doing so
constitutes unnecessary and wanton infliction of pain. Wilson v.
Seiter, 501 U.S. 294, 297 (1991). To prevail on such a claim, a
plaintiff “must allege acts or omissions sufficiently harmful to
evidence deliberate indifference to serious medical needs.”
Estelle v. Gamble, 429 U.S. 97, 106 (1976). Deliberate
indifference encompasses only unnecessary and wanton infliction of
pain repugnant to the conscience of mankind. Id. at 105-06. “The
legal conclusion of 'deliberate indifference[]' . . . must rest on
facts clearly evincing 'wanton' actions on the part of the
defendants.” Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir.
1985).
A showing of deliberate indifference requires the inmate to
submit evidence that prison officials "'refused to treat him,
ignored his complaints, intentionally treated him incorrectly, or
engaged in any similar conduct that would clearly evince a wanton
disregard for any serious medical needs.'" Domino v. Texas Dep't
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of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001)(quoting
Johnson, 759 F.2d at 1238). Unsuccessful medical treatment,
ordinary acts of negligence, or medical malpractice do not
constitute a cause of action under § 1983. Stewart v. Murphy, 174
F.3d 530, 534 (5th Cir. 1999). Absent exceptional circumstances,
a prisoner's disagreement with his medical treatment is not
actionable under § 1983. Banuelos v. McFarland, 41 F.3d 232, 235
(5th Cir. 1995).
Davidson supports his claim of entitlement to relief by
referring to authorities who advocate interferon therapy for
persons with psychiatric disorders by use of controlled trials,
nocturnal administration, dosage reduction, biweekly psychiatric
checkups, and psychoactive drugs. Other than the fact that on
occasion his alanine aminotransferase (ALT) readings have been
somewhat elevated, however, Davidson has not shown any basis for
concluding that his hepatitis is or has been severe enough to
mandate such extraordinary medical intervention.
Davidson faults appellee Dr. Revell for not having referred
him for determination of the degree of his liver inflammation,
fibrosis, or cirrhosis, as to which several authorities recommend
a biopsy. Davidson’s ALTs were approximately normal as of April
2002, however, when he was transferred from Dr. Revell’s unit.
Davidson recognizes that, as the magistrate judge observed,
TDCJ-ID Policy B-14.13 provides that “[s]evere depression or other
active neuropsychiatric disorder is classified as an ‘absolute
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contraindication’ to interferon therapy.” Davidson nevertheless
argues that appellees Dr. Crawford and Dr. Clayton should have
referred him to a psychiatrist to determine whether severe
depression or some other active psychiatric syndrome made him
ineligible for such treatment. Even if these allegations proved
true, however, these psychiatrists’ acts or omissions would amount
to nothing more than malpractice or negligence, which are not
actionable under § 1983. See Stewart, 174 F.3d at 534. Thus, the
magistrate judge did not err in concluding that Davidson failed to
show that the denial of interferon therapy amounted to “deliberate
indifference to his serious medical needs,” as such denial was done
in compliance with generally accepted medical standards.
Davidson also contends that the magistrate judge erred by
dismissing his claims under the Americans with Disabilities Act
(ADA). He argues that he is disabled by mental illness and that
unspecified appellees violated Policy B-14.13 by not providing
qualified personnel to determine the degree of severity or
activeness of his mental illness and by not providing him with
controlled trials of medication with interferon.
Davidson’s ADA claim lacks merit because he has not alleged or
shown that he was adversely treated solely because of his handicap
of mental illness. See Judice v. Hosp. Serv. Dist. No. 1, 919 F.
Supp. 978, 981 (E.D. La. 1996). As the magistrate judge concluded,
“[t]he refusal to administer drugs which are medically
contraindicated by a medical disorder does not constitute
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‘discrimination’ because of this disorder; rather, such refusal is
proper and responsible medical conduct.”
Davidson asserts further that he is entitled to relief because
the magistrate judge denied his motion for appointment of counsel.
The magistrate judge denied the motion prior to the district
judge’s authorization for further proceedings to be conducted by
the magistrate judge, subject to later appointment of counsel if
necessary. Davidson did not, however, appeal the magistrate
judge’s ruling or again request that counsel be appointed.
Accordingly, we lack jurisdiction to review this denial of
Davidson’s motion for appointment of counsel. See Colburn v. Bunge
Towing, Inc., 883 F.2d 372, 379 (5th Cir. 1989).
Davidson has filed a motion requesting that we grant a
mandatory injunction directing the appellees to administer
interferon to him immediately. He argues that his life is in
danger because he has both hepatitis B and hepatitis C. As
Davidson is not likely to prevail on the merits of his claims he is
not entitled to such relief at the appellate level. See
Libertarian Party of Texas v. Fainter, 741 F.2d 728, 729 (5th Cir.
1984).
Davidson also seeks leave to amend his motion for injunctive
relief to include a request that we order his transfer to federal
protective custody for service of the remainder of his sentence.
He assert that the appellees may cause his death to avoid monetary
liability and public exposure. This motion is denied as frivolous.
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In addition, Davidson seeks authority to supplement the
appellate record. The motion is denied because Davidson has not
shown that the additional documents are necessary to the proper
disposition of his appeal. See Harvey v. Andrist, 754 F.2d 569,
571 (5th Cir. 1985).
Finally, we deny Davidson’s motion for leave to file a
supplemental or letter brief. See 5TH CIR. R. 28.5.
AFFIRMED; ALL OUTSTANDING MOTIONS DENIED.
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