Hanna v. Corrections Corp. ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS January 28, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-30495
Summary Calendar
MARK HANNA,
Plaintiff-Appellant,
versus
CORRECTIONS CORPORATION OF AMERICA; MILTON EICHMANN;
TIM WILKINSON; PAT THOMAS; CONWAY HOSPITAL;
JOHN QUO, Doctor at Conway Hospital;
JOHN BLANK, Dentist at Winnfield Correctional Center;
JANE HITT, Nurse at Winn Correctional Center;
JANE BLANK, Nurse/Medical Technician
at Winn Correctional Center,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 02-CV-2653
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Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.
PER CURIAM:*
Proceeding pro se, Mark Hanna, Louisiana state prisoner
# 132872, appeals the district court’s dismissal of his 42 U.S.C.
§ 1983 complaint as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i).
*
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that this opinion should not be published and is not precedent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. 03-30495
-2-
Hanna has filed with this court motions to recuse the magistrate
judge due to a conflict of interest and for a change of venue.
Hanna argues on appeal that the district court erred in
dismissing his claims stemming from the delay in treating his
colorectal ulcer for financial reasons and the denial of
heartburn medication. Hanna maintains that the district court
erred in dismissing his claim regarding the delay in treating his
toothache and the denial of pain medication while awaiting the
extraction of the tooth. Hanna argues that the district court
erred in dismissing his claims for the denial of medical
treatment against a “Dr. Quo.” Hanna asserts that his claim
against Conway Hospital was meritorious. He also argues the
merits of his claims raised in stricken pleadings and against
prison officials for attacking him, filing false disciplinary
charges, and denying him due process during disciplinary
proceedings. Hanna maintains that the district court erred in
dismissing his claims without “fair warning.”
The district court incorrectly characterized Hanna’s
colorectal ulcer claim as a mere disagreement between Hanna and
prison officials as to his treatment. A review of the record
shows that Hanna alleged that medically-indicated treatment was
delayed for financial reasons. The denial or delay of necessary
medical treatment for financial or other improper motives not
based on medical reasons may constitute an Eighth Amendment
violation. See Chance v. Armstrong, 143 F.3d 698, 704 (2d Cir.
No. 03-30495
-3-
1998); Ancata v. Prison Health Servs., Inc., 769 F.2d 700, 704
(11th Cir. 1985). The district court thus erred in concluding
that Hanna’s claim lacked an arguable basis in fact or law. See
Norton v. Dimazana, 122 F.3d 286, 291 (5th Cir. 1997).
The district court’s failure to address the claim regarding
the treatment of Hanna’s heartburn was harmless, as Hanna did not
allege sufficient facts to show that the unavailability of the
medication resulted from deliberate indifference as opposed to
mere negligence. See Farmer v. Brennan, 511 U.S. 825, 834
(1994).
Hanna has not alleged that he suffered substantial harm due
to the delay in having his tooth extracted, and he thus failed to
raise an Eighth Amendment claim as to the delayed treatment. See
Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993). He may,
however, recover damages for the pain he suffered during the
delays. See Thompkins v. Belt, 828 F.2d 298, 301 (5th Cir.
1987). The district court’s failure to address this claim is not
harmless, as the claim does not lack an arguable basis in fact or
law. See Norton, 122 F.3d at 291.
Hanna’s complaint that Dr. Quo did not perform the type of
examination Hanna deemed necessary is a disagreement regarding
medical treatment and was properly dismissed. See Varnado v.
Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991).
Because Hanna fails to argue that the district court erred
in dismissing his claims against Conway Hospital as barred by the
No. 03-30495
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Eleventh Amendment, he has abandoned that issue. See Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). The district
court struck Hanna’s third amended complaint and denied him
permission to file further amended complaints. Although Hanna
addresses the merits of the claims asserted in those complaints,
he does not argue that the district court erred in striking the
amended complaints and has abandoned these claims. See id.
Hanna’s argument that the district court dismissed his
complaint without notice is without merit. See Jackson v. City
of Beaumont Police Dep’t, 958 F.2d 616, 619 (5th Cir. 1992).
Finally, Hanna has filed motions with this court to recuse
the magistrate judge and for a change in venue in which he
asserts that there is a conflict of interest. Hanna filed
similar motions in the district court, which were not addressed;
the district court should address the motions upon remand.
Accordingly, we AFFIRM IN PART, REVERSE IN PART, and REMAND
for further proceedings. The motions for recusal and change of
venue filed in this court are DENIED.