Filed: May 09, 2000
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 99-60059 (Summary Calendar) DONALD O'BRYANT, Plaintiff-Appellant, versus ROBERT CULPEPPER; JOHN DONNELLY; LARRY HARDY, Defendants-Appellees. - Appeal from the United States District Court for the Southern District of Mississippi (3:98-CV-220-BN) - May 4, 2000 Before POLITZ, WIENER, and BARKSDALE, Circuit Judges. PER CURIAM:* Plaintiff-Appellant Donald O’Bryant has appealed the district court's judgment dismissing his civil rights co
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 99-60059 (Summary Calendar) DONALD O'BRYANT, Plaintiff-Appellant, versus ROBERT CULPEPPER; JOHN DONNELLY; LARRY HARDY, Defendants-Appellees. - Appeal from the United States District Court for the Southern District of Mississippi (3:98-CV-220-BN) - May 4, 2000 Before POLITZ, WIENER, and BARKSDALE, Circuit Judges. PER CURIAM:* Plaintiff-Appellant Donald O’Bryant has appealed the district court's judgment dismissing his civil rights com..
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-60059
(Summary Calendar)
DONALD O'BRYANT,
Plaintiff-Appellant,
versus
ROBERT CULPEPPER; JOHN DONNELLY; LARRY HARDY,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Mississippi
(3:98-CV-220-BN)
--------------------
May 4, 2000
Before POLITZ, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Donald O’Bryant has appealed the district
court's judgment dismissing his civil rights complaint for failure
to state a claim. See 28 U.S.C. § 1915(e)(2)(B)(ii). We review
such a dismissal under the same de novo standard as we employ when
reviewing dismissals under Fed. R. Civ. P. 12(b)(6). Black v.
Warren, 134 F.3d 732, 733-34 (5th Cir. 1998). We therefore “must
assume that all of the plaintiff’s factual allegations are true.
The district court’s dismissal may be upheld, only if it appears
that no relief could be granted under any set of facts that could
*
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this opinion should not be published and is not precedent except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.
be proven consistent with the allegations.” Bradley v. Puckett,
157 F.3d 1022, 1025 (5th Cir. 1998) (internal quotation marks and
citation omitted).
The Eighth Amendment proscribes medical care that is
“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. Thus, a prison official acts with deliberate
indifference “only if he knows that inmates face a substantial risk
of serious harm and disregards that risk by failing to take
reasonable measures to abate it.” Farmer v. Brennan,
511 U.S. 825,
847 (1994). Mere unsuccessful medical treatment, negligence, or
medical malpractice are insufficient to constitute deliberate
indifference in and of themselves. Varnado v. Lynaugh,
920 F.2d
320, 321 (5th Cir. 1991). Furthermore, “[d]isagreement with
medical treatment does not state a claim for Eighth Amendment
indifference to medical needs.” Norton v. Dimazana,
122 F.3d 286,
292 (5th Cir. 1997).
"[P]rison work requirements which compel inmates to perform
physical labor which is beyond their strength, endangers their
lives, or causes undue pain constitute cruel and unusual
punishment." Howard v. King, 707 F.2d 215, 219 (5th Cir. 1983).
Work that is not cruel and unusual per se may nevertheless violate
the Eighth Amendment if prison officials are aware that it will
"significantly aggravate" a prisoner's serious medical condition.
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Jackson, 864 F.2d at 1246. Alone, however, purely negligent
assignment to work that is beyond the prisoner's physical abilities
is not unconstitutional.
Id.
Although deliberate indifference may be established by showing
the delay or denial of appropriate medical care or through the
unnecessary infliction of pain,
Estelle, 429 U.S. at 104, "delay in
medical care can only constitute an Eighth Amendment violation if
there has been deliberate indifference, which results in
substantial harm." Mendoza v. Lynaugh,
989 F.2d 191, 195 (5th Cir.
1993). Although O’Bryant was injured on a Saturday and did not
receive treatment until the following Thursday, he cannot show that
the delay in treating his injury caused substantial harm.
O'Bryant was allowed a “lay-in” following his injury during
which he was not required to work for at least four weeks. He
indicates that defendant Dr. Robert Culpepper refused to give him
an additional lay-in after the initial four-week lay-in and treated
the condition with pain medication only. These allegations state
a negligence claim only and do not establish that Dr. Culpepper was
deliberately indifferent to O'Bryant's medical condition. Claims
against defendants Larry Hardy and John Donnelly, Jr. are waived
because O'Bryant failed to brief them on appeal. See Brinkmann v.
Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987).
Contentions that the magistrate judge misstated O’Bryant’s
factual allegations and erred in refusing to permit him to consult
his notes during the Spears hearing are unavailing, see Spears v.
3
McCotter, 766 F.2d 179 (5th Cir. 1985). There was no reversible
error. Convinced that "no relief could be granted under any set of
facts that could be proven consistent with the allegations,” see
Bradley, 157 F.3d at 1025, we affirm the district court's judgment
in all respects.
AFFIRMED.
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