Adams v. Duke , 73 F. App'x 766 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 5, 2003
Charles R. Fulbruge III
Clerk
No. 02-11108
Summary Calendar
RUSSELL DAVID ADAMS,
Plaintiff-Appellant,
versus
JAMES M. DUKE, Warden; BOB PREWITT;
STEPHEN PECK, Dr.; ADEL NAFRAWI, Dr.;
BOUNDS, Nurse; SOTO, Officer; BRUCE
DENTON, Officer; DAVID STEVENS,
Officer; JESUS ELIZONDO, Officer;
WILLIAM GONZALEZ, Dr.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:01-CV-187
Before GARWOOD, EMILIO M. GARZA and BENAVIDES, Circuit Judges.
PER CURIAM:*
Russell David Adams appeals the magistrate judge’s dismissal
of his complaint as frivolous. Adams asserted claims of deliberate
indifference to his serious medical needs against eleven
defendants. On appeal, however, Adams has adequately briefed
*
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opinion should not be published and is not precedent except under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.
arguments against only three of the original defendants: Nurse
Bounds, Dr. Stephen Peck, and Dr. William Gonzalez. With respect
to the dismissal of his claims against Officer Jesus Elizondo,
Officer David Stevens Adams, and Warden James M. Duke, Adams has
made one-sentence requests for relief that fail to identify any
error in the magistrate judge’s analysis. Such briefing is
insufficient to entitle Adams to relief. See Brinkmann v. Dallas
County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
Adams has abandoned his claims against the five remaining
defendants by failing to raise them in his brief. See Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
Because Adams’s claims against Nurse Bounds, Dr. Peck, and Dr.
Gonzalez were dismissed as frivolous, this court’s review is for
abuse of discretion. See Martin v. Scott, 156 F.3d 578, 580 (5th
Cir. 1998); Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997).
“A complaint is frivolous if it lacks an arguable basis in law or
fact . . . .” Martin, 156 F.3d at 580. Because Adams is
proceeding pro se in this matter, we construe his pleadings
liberally. See Haines v. Kerner, 92 S. Ct. 594, 595-96 (1972).
Adams alleged that Nurse Bounds disregarded a substantial risk
to his health by failing to order medication that was prescribed
for his edema, despite his repeated requests, resulting in a
twenty-nine-day delay in his receipt of the medication. He also
alleged that, in failing for so long to order the medication, Nurse
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Bounds disregarded a substantial risk of danger which “she was
knowledgeable of.” Adams further alleged that, during the period
of the delay, without evaluating his condition, Nurse Bounds
refused his request to see a doctor and instead scheduled a future
appointment to evaluate his progress under the medication that she
had failed to order. Finally, he alleged that he contracted a bone
infection due to the lack of timely testing and treatment.
Although it is evident that Adams has received considerable
medical care, we cannot agree that his claims with respect to Nurse
Bound’s are facially frivolous. See Murrell v. Bennett, 615 F.2d
306, 310 n.4 (5th Cir. 1980) (concluding that an overall pattern of
medical care reflecting general attentiveness does not “necessarily
excuse one episode of gross misconduct.”). Adams’s claims against
Nurse Bounds are not merely allegations of unsuccessful medical
treatment, acts of negligence or medical malpractice, or
disagreement with prison officials regarding medical treatment,
claims that are insufficient to establish an unconstitutional
denial of medical care. See Varnado v. Lynaugh, 920 F.2d 320, 321
(5th Cir. 1991). Accordingly, we VACATE the dismissal of Adams’s
claims against Nurse Bounds and REMAND these claims for further
consideration.
We reach a different conclusion, however, with respect to
Adams’s claims against Dr. Peck. After a thorough examination of
Adams’s allegations regarding Dr. Peck’s treatment, and the
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arguments presented in Adams’s appellate brief, we conclude that
Adams’s claims amount to nothing more than complaints regarding
unsuccessful medical treatment and disagreements with the medical
treatment provided by Dr. Peck. See id. Because Adams has not
shown that the magistrate judge abused her discretion, we AFFIRM
the dismissal of Adams’s claims against Dr. Peck.
We likewise agree with the magistrate judge’s conclusion that
Adams’s claims against Dr. Gonzalez are frivolous. Adams’s
allegation that Dr. Gonzalez, whom he identified as the “Medical
Director for Texas Tech University Correctional Health Care
Systems,” was personally involved in or causally connected to the
treatment he received are conclusory and thus insufficient. See
Arnaud v. Odom, 870 F.2d 304, 307 (5th Cir. 1989). Moreover, to
the extent that Adams contends that Dr. Gonzalez is liable in his
capacity as Dr. Peck’s supervisor, we agree with the magistrate
judge that because Adams has not stated a nonfrivolous
constitutional claim regarding Dr. Peck’s treatment, he has no
nonfrivolous constitutional claim against Dr. Gonzalez. See Doe v.
Taylor Indep. Sch. Dist., 15 F.3d 443, 454 (5th Cir. 1994) (en
banc) (stating that supervisory liability attaches only where the
plaintiff demonstrates deliberate indifference on the part of the
supervisor).
Adams also argues that the magistrate judge erred in
dismissing his complaint without conducting a hearing pursuant to
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Spears v. McCotter, 766 F.2d 179, 181 (5th Cir. 1985). The
“principal vehicles which have evolved for remedying inadequacy in
prisoner pleadings are the Spears hearing and a questionnaire to
bring into focus the factual and legal bases of prisoners’ claims.”
Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994) (internal quotation
and footnote omitted). In this matter, the magistrate judge
utilized a questionnaire. Because Adams has not shown that the
magistrate judge’s use of a questionnaire, rather than a Spears
hearing, compromised his ability to present the facts underlying
his claims, he has failed to show error on the part of the
magistrate judge.
We VACATE the dismissal of Adams’s claims against Nurse
Bounds, and REMAND those claims for further consideration. We
AFFIRM the dismissal of all Adams’s other claims.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.
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