Emmitt Atkins v. Joseph Bradford ( 2015 )

Case: 14-40219 Document: 00513075361 Page: 1 Date Filed: 06/11/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-40219 FILED
Summary Calendar June 11, 2015
Lyle W. Cayce
Clerk
EMMITT DEWAYNE ATKINS,
Plaintiff-Appellant
v.
CORRECTION OFFICER JOSEPH BRADFORD, SERGEANT ELIAS
YBARRA; LIEUTENANT WILLIAM JAMES; CAPTAIN JOE GONZALES,
JR., NURSE LORIE HUDSON; DOCTOR WITT; LVN MS. PERALES,
OFFICER GABRIEL GRANADOS, formerly known as Unknown Officer,
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:12-CV-331
Before JONES, BENAVIDES, and GRAVES, Circuit Judges.
PER CURIAM: *
Emmitt Dewayne Atkins, Texas prisoner # 1666149, appeals the district
court’s judgment granting summary judgment in favor of the defendant prison
officers and medical personnel and dismissing Atkins’s 42 U.S.C. § 1983
complaint. In the complaint, Atkins alleged a failure to protect him from
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 14-40219 Document: 00513075361 Page: 2 Date Filed: 06/11/2015
No. 14-40219
another prisoner who threw boiling water on Atkins and deliberate
indifference to his medical needs.
As an initial matter, Atkins has not briefed any argument refuting the
dismissal of his claim that Officer Gabriel Granados failed to protect him from
the injuries he sustained as a result of the other inmate’s conduct. Although
we liberally construe the briefs of pro se appellants, arguments must be briefed
to be preserved. Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993). Atkins
has abandoned the failure-to-protect claim on appeal. Thus, the dismissal of
that claim against Granados is affirmed.
Atkins contends that the district court erred in determining that the
medical defendants did not act with deliberate indifference to his serious
medical needs. Atkins asserts that because the defendants did not
immediately transfer him to the hospital, they unconstitutionally delayed or
denied him medical treatment.
We review a district court’s ruling on summary judgment de novo,
employing the same standard used by the district court. McFaul v. Valenzuela,
684 F.3d 564, 571 (5th Cir. 2012). A district court “shall grant summary
judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” FED.
R. CIV. P. 56(a).
The defendants provided medical records showing that Licensed
Vocational Nurse Perales examined Atkins’s burns, including his eye injury,
approximately forty-five minutes after the incident occurred and sought advice
from the charge nurse and Dr. Whitt regarding the proper treatment to be
administered. Nurse Perales followed the orders given by the doctor and
scheduled a follow-up appointment for Atkins the following day. Nurse
Practitioner Hudson examined Atkins the next day and increased the level of
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Case: 14-40219 Document: 00513075361 Page: 3 Date Filed: 06/11/2015
No. 14-40219
treatment and pain medication in response to Atkins’s condition at that time.
Hudson scheduled an emergency ophthalmology appointment for the next day.
The defendants also submitted the affidavit of Dr. Stephen Bowers, who
reviewed the medical records, and determined that the care and medical
treatment given by the medical defendants was appropriate and within the
proper standard of care. Dr. Bowers determined that Atkins had not developed
an infection at any time from his burns or any permanent eye damage and,
thus, he did not suffer any additional scarring or damage as a result of not
being sent immediately to the hospital.
Atkins did not present evidence showing that the medical defendants
refused to treat him, ignored his complaints, or intentionally treated him
incorrectly, or that the defendants’ decision not to immediately transfer him to
the hospital evinced a wanton disregard of Atkins’s serious medical needs. See
Domino v. Texas Dep’t of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001).
Atkins’s disagreement with the medical treatment he received and the
defendants’ conduct, even if the conduct amounted to negligence or
malpractice, does not constitute deliberate indifference supporting an Eighth
Amendment violation. Gobert v. Calswell, 463 F.3d 339, 346 (5th Cir. 2006).
Viewing the evidence in the light most favorable to Atkins, he has failed
to identify a genuine dispute of material fact with regard to whether the
medical defendants acted with deliberate indifference to his serious medical
needs. See Domino, 239 F.3d at 756; FED. R. CIV. P. 56(a). Because the
defendants did not violate Atkins’s constitutional rights, the district court
properly granted summary judgment. Domino, 239 F.3d at 755-56. The
judgment is AFFIRMED.
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