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Miller v. Kalmanov, 06-10517 (2007)

Court: Court of Appeals for the Fifth Circuit Number: 06-10517 Visitors: 16
Filed: Oct. 30, 2007
Latest Update: Feb. 21, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED October 30, 2007 No. 06-10517 Charles R. Fulbruge III Summary Calendar Clerk MARTIN MILTON MILLER, JR Plaintiff-Appellant v. ALEXANDER M KALMANOV, Medical Doctor; DAVID POTTER, D.O.; JOHN E WILSON, P.A. Defendants-Appellees Appeal from the United States District Court for the Northern District of Texas USDC No. 7:04-CV-159 Before HIGGINBOTHAM, STEWART and OWEN, Circuit Judges. PER CURIA
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          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                  Fifth Circuit

                                                                    FILED
                                                                  October 30, 2007

                               No. 06-10517                 Charles R. Fulbruge III
                             Summary Calendar                       Clerk


MARTIN MILTON MILLER, JR

                                            Plaintiff-Appellant

v.

ALEXANDER M KALMANOV, Medical Doctor; DAVID POTTER, D.O.;
JOHN E WILSON, P.A.

                                            Defendants-Appellees


                 Appeal from the United States District Court
                      for the Northern District of Texas
                            USDC No. 7:04-CV-159


Before HIGGINBOTHAM, STEWART and OWEN, Circuit Judges.
PER CURIAM:*
      Martin Milton Miller, Jr., Texas prisoner # 634502, appeals from the
district court’s grant of the defendants’ motion for summary judgment and the
dismissal of his pro se, in forma pauperis (IFP), 42 U.S.C. § 1983 complaint. We
review de novo the district court’s grant of summary judgment. See Cousin v.
Small, 
325 F.3d 627
, 637 (5th Cir. 2003).


      *
       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should not be published and is not precedent except under the limited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. 06-10517

      Miller asserts that, for a period of five years, defendants Kalmanov and
Wilson exercised deliberate indifference to the treatment of his hemorrhoid
condition. The record reflects that Miller was treated for his hemorrhoids,
including two separate visits with specialists. Miller’s complaints regarding his
treatment constitute disagreement with the method of treatment that was
provided and are non-actionable under the Eighth Amendment. See Varnardo
v. Lynaugh, 
920 F.2d 320
, 321 (5th Cir. 1991).
      Miller also asserts that the defendants lied about his medical condition to
retaliate against Miller for filing grievances concerning the method of treatment
that he was receiving. He contends that Wilson and Kalmanov engaged in
retaliatory practices by consistently prescribing hydrocortisone cream although
it caused Miller burning pain. Miller has not alleged “a chronology of events
from which retaliation may plausibly be inferred.” See Tighe v. Wall, 
100 F.3d 41
, 42 (5th Cir. 1996). He has not shown that but for a retaliatory motive, the
defendants would not have prescribed hydrocortisone cream to treat his
hemorrhoid condition. See 
id. The district
court did not err in granting the
defendants’ motion for summary judgment. See 
Cousin, 325 F.3d at 637
.
      Miller has abandoned his conspiracy and deliberate indifference claims
against defendant Potter. See Yohey v. Collins, 
985 F.2d 222
, 224-25 (5th Cir.
1993). Accordingly, the judgment of the district court is AFFIRMED.




                                       2

Source:  CourtListener

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