Thompson v. Basse

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 5, 2006
Charles R. Fulbruge III
Clerk
No. 05-10475
Summary Calendar
VENCE LAMOR THOMPSON,
Plaintiff-Appellant,
versus
DAVID BASSE, Dr.; WILLIAM GONZALEZ; PATRICE MAXEY,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:03-CV-312
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Before DAVIS, WIENER and BENAVIDES, Circuit Judges.
PER CURIAM:*
Vence Lamor Thompson, Texas prisoner # 1101294, appeals the
district court’s order granting the defendants’ motion for
summary judgment, denying his motion for partial summary
judgment, and dismissing his 42 U.S.C. § 1983 action with
prejudice. He argues that there are genuine issues of material
fact concerning whether Dr. David Basse’s actions were
objectively reasonable and whether Patrice Maxey provides medical
care to inmates. He argues that his disagreement with the
prescribed medical treatment of tetracycline and rifampin was not
*
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this opinion should not be published and is not precedent except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. 05-10475
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without reasonable cause as the treatment was ineffective and
caused serious side effects, including diarrhea, vomiting, and
severe weight loss. Thompson has not shown that there are
genuine issues of material fact which would preclude the granting
of summary judgment. At most, Thompson has shown that he
disagreed with the medical treatment provided by Dr. Basse and
Maxey, which does not rise to the level of a constitutional
violation. See Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir.
1993); Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991).
Thompson has not shown that Dr. Basse or Maxey were deliberately
indifferent to his serious medical needs as they examined him
each time he requested a consultation, provided medication,
referred him to a dermatologist, and followed one of the two
alternative courses of treatment recommended by the
dermatologist. See Domino v. Texas Dep’t of Criminal Justice,
239 F.3d 752, 756 (5th Cir. 2001). Because Thompson failed to
exhaust his administrative remedies, as required by 42 U.S.C.
§ 1997e(a), concerning his claim that Dr. Basse and Maxey failed
to treat the side effects of the medication and failed to provide
pain medication, the district court did not err in determining
that Thompson could not raise this claim in his § 1983 action.
See Johnson v. Johnson, 385 F.3d 503, 516 (5th Cir. 2004).
Thompson also argues that the district court abused its
discretion in denying his motion for a temporary restraining
order and a preliminary injunction. We lack jurisdiction over
No. 05-10475
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the denial of Thompson’s motion for a temporary restraining
order. See Faulder v. Johnson, 178 F.3d 741, 742 (5th Cir.
1999). Because Thompson has not shown that the district court
erred in granting the defendants’ motion for summary judgment, he
has not shown that he had a substantial likelihood of success on
the merits. Therefore, he has not shown that the district court
abused its discretion in denying his motion for a preliminary
injunction. See Black Fire Fighters Ass’n v. City of Dallas,
905 F.2d 63, 65 (5th Cir. 1990).
AFFIRMED.