Case: 11-40849     Document: 00511970176         Page: 1     Date Filed: 08/27/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          August 27, 2012
                                     No. 11-40849
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

MARK GRANT,

                                                  Plaintiff-Appellant

v.

PHYSICIAN ASSISTANT DAVID FORTNER; LIEUTENANT CORRECTIONAL
OFFICER KIMBERLY J. PENTL; WARDEN 1 RICHARD A. MORRIS;
LIEUTENANT V. L. ALLEN; PROGRAM SUPERVISOR AMY D. JONES;
JAMIE WILLIAMS; DENISE BOX,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 6:10-CV-447


Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        Mark Grant, Texas prisoner # 807219, appeals the district court’s grant
of summary judgment and dismissal of his 42 U.S.C. § 1983 action and the
denial of his motion for appointment of counsel. Grant argues that physician’s
assistant David Fortner violated Grant’s Eighth Amendment rights when
Fortner discontinued Grant’s prescription for morphine without weaning Grant

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                   No. 11-40849

off of this drug. The district court held that Fortner was entitled to qualified
immunity in his individual capacity and Eleventh Amendment immunity in his
official capacity. Grant does not challenge the latter finding, nor does he
challenge the district court’s prior ruling dismissing his claims against the other
defendants. Accordingly, he has abandoned such issues. See Yohey v. Collins,

, 224–25 (5th Cir. 1993).
      We review a grant of summary judgment de novo, using the same standard
as that employed by the district court. Carnaby v. City of Houston, 

,
187 (5th Cir. 2011) (citation omitted).        When an official pleads qualified
immunity as a defense, this alters the summary judgment burden of proof by
shifting it to the plaintiff “who must rebut the defense by establishing a genuine
fact issue as to whether the official’s allegedly wrongful conduct violated clearly
established law.” Brown v. Callahan, 

, 253 (5th Cir. 2010) (citation
omitted), cert. denied, 

 (2011).
      Prison officials violate the Eighth Amendment’s prohibition against cruel
and unusual punishment when they demonstrate deliberate indifference to a
prisoner’s serious medical needs, constituting an “unnecessary and wanton
infliction of pain . . . in their response to the prisoner’s needs or by prison guards
in intentionally denying or delaying access to medical care or intentionally
interfering with the treatment once prescribed.” See Estelle v. Gamble, 

, 104–05 (1976) (internal quotation marks and citation omitted). The failure
to treat drug withdrawal symptoms may state a constitutional claim. Pedraza
v. Meyer, 

, 318–19 (5th Cir. 1990). Unsuccessful medical treatment,
negligence, neglect, and medical malpractice do not give rise to a § 1983 action,
and an inmate’s disagreement with his medical treatment does not establish a
constitutional violation. Varnado v. Lynaugh, 

, 321 (5th Cir. 1991).
      Grant concedes that at the time his prescription for morphine was
discontinued in August 2010, he received a disciplinary charge for possessing
two morphine pills in his cell. Although this disciplinary charge was later

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                                  No. 11-40849

overturned, it is undisputed that Fortner was aware of this charge at the time
that he discontinued Grant’s prescription. The evidence before the district court
also showed that Grant had refused to attend a scheduled appointment with the
doctor who had prescribed the morphine. Fortner averred that he did not believe
that it was necessary to wean Grant off of the morphine because he believed that
the only way Grant could have had morphine in his cell was by not ingesting his
own prescription. He stated that there were no objective signs that Grant
suffered from severe withdrawal syndrome after the morphine was discontinued,
and he noted that when Grant was seen at the prison clinic after the prescription
was discontinued, he was provided anti-nausea and pain medication. Dr. Steven
Bowers, the Legal Coordinator and Director of the Continuing Medical
Education Committee for the University of Texas Medical Branch-Correctional
Managed Health Care, stated via affidavit that the symptoms exhibited by
Grant following the discontinuation of his morphine prescription were
inconsistent with someone suffering from withdrawal syndrome.
      Grant failed to demonstrate that there is a genuine issue of material fact
regarding whether Fortner was deliberately indifferent to his serious medical
needs, as required to establish an Eighth Amendment violation based on medical
treatment. See Reeves v. Collins, 

, 176–77 (5th Cir. 1994); see also
Shockley v. Fox, 444 F. App’x 36, 37–38 (5th Cir. 2011) (upholding dismissal of
claim that prison officials were deliberately indifferent where they did not fill a
narcotic prescription because of prison policy but instead offered the inmate
other medications). Accordingly, the district court did not err in granting
Fortner’s motion for summary judgment and dismissing the complaint.
      We lack jurisdiction over the appeal from the magistrate judge’s denial of
Grant’s motion for appointment of counsel because it is not a final order under
28 U.S.C. § 1291. See 28 U.S.C. § 636(b)(1)(A), (c)(1), (c)(3); Donaldson v. Ducote,

, 624–25 (5th Cir. 2004).
      AFFIRMED in part and DISMISSED in part for lack of jurisdiction.

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