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McQueen v. Revell, 02-10048 (2002)

Court: Court of Appeals for the Fifth Circuit Number: 02-10048 Visitors: 10
Filed: Jul. 26, 2002
Latest Update: Feb. 21, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 02-10048 Summary Calendar BRIAN D. MCQUEEN, Plaintiff-Appellant, versus TIMOTHY REVELL, DR., in his individual capacity; WILLIAM GONZALEZ, MD., in his individual capacity; DAVID BASSE, MD., in his individual capacity; CHARLES RIDGE, DR., in his individual capacity; CARTER KARR, MD., in his individual capacity; ET AL., Defendants-Appellees. - Appeal from the United States District Court for the Northern District of Texas USDC No. 2:0
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               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT


                           No. 02-10048
                         Summary Calendar


BRIAN D. MCQUEEN,

                                         Plaintiff-Appellant,

versus

TIMOTHY REVELL, DR., in his individual capacity; WILLIAM
GONZALEZ, MD., in his individual capacity; DAVID BASSE, MD.,
in his individual capacity; CHARLES RIDGE, DR., in his
individual capacity; CARTER KARR, MD., in his individual
capacity; ET AL.,

                                         Defendants-Appellees.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                       USDC No. 2:01-CV-88
                      --------------------
                          July 25, 2002

Before JONES, SMITH and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

     Brian D. McQueen, Texas prisoner # 631997, appeals the

district court’s dismissal, as frivolous and for failure to state

a claim, of his 42 U.S.C. § 1983 complaint concerning denied and

delayed medical care.

     Prison officials violate the constitutional prohibition

against cruel and unusual punishment when they demonstrate


     *
        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that this opinion should not be published and is not precedent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. 02-10048
                                 -2-

deliberate indifference to a prisoner's serious medical needs,

constituting an unnecessary and wanton infliction of pain.

Wilson v. Seiter, 
501 U.S. 294
, 297 (1991).    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); see Reeves v. Collins, 
27 F.3d 174
, 176-77 (5th Cir. 1994) (applying Farmer to a denial-of-

medical-care claim).   Unsuccessful medical treatment, negligence,

neglect, and medical malpractice are insufficient to give rise to

a constitutional violation.   See Varnado v. Lynaugh, 
920 F.2d 320
, 321 (5th Cir. 1991).   A delay in medical care violates the

Eighth Amendment only if it is due to deliberate indifference and

the delay results in substantial harm.     Mendoza v. Lynaugh, 
989 F.2d 191
, 195 (5th Cir. 1993).   A prisoner's disagreement with

his medical treatment is not sufficient to state a claim under §

1983.   
Varnado, 920 F.2d at 321
.

     McQueen repeats the detailed factual allegations, which he

made in the district court, concerning denied or delayed

treatment for his hepatitis C, hypoglycemia, abdominal nodules,

and a nasal infection.   He does not adequately brief any

challenge to the district court’s and magistrate judge’s specific

determinations as to why his factual allegations do not state a

constitutional claim for deliberate indifference to serious

medical needs.   When an appellant fails to identify any error in
                          No. 02-10048
                               -3-

the district court's analysis, it is the same as if the appellant

had not appealed that judgment.   Brinkmann v. Dallas County

Deputy Sheriff Abner, 
813 F.2d 744
, 748 (5th Cir. 1987).

Although pro se briefs are afforded liberal construction, see

Haines v. Kerner, 
404 U.S. 519
, 520 (1972), even pro se litigants

must brief arguments in order to preserve them.    Yohey v.

Collins, 
985 F.2d 222
, 224-25 (5th Cir. 1993).    Thus, McQueen has

abandoned these issues by failing to brief them adequately.

     McQueen contends that the facts he alleged showed a pattern

of deliberate indifference.   “[E]ach defendant's subjective

deliberate indifference, vel non, must be examined separately.”

Stewart v. Murphy, 
174 F.3d 530
, 537 (5th Cir. 1999).    The

alleged independent acts of negligence by each defendant do not

demonstrate that each doctor knew that his acts or omissions

subjected McQueen to an excessive risk of harm, yet responded to

the risk with deliberate indifference, or that the defendants

denied, substantially delayed, or intentionally interfered with

McQueen’s treatment.

     McQueen argues that his dental-care claim against defendants

Carter Karr, a dentist, and Romalee Barbaree, a dental hygienist,

should not have been severed.   The district court did not abuse

its broad discretion in severing this claim, which does not arise

out of the same occurrences related to McQueen’s denied-or-

delayed-medical-treatment claims, against these defendants, who

were not involved in the other alleged incidents of deliberate
                          No. 02-10048
                               -4-

indifference to his medical needs.   See FED. R. CIV. P. 21;

Williams v. Hoyt, 
556 F.2d 1336
, 1341 (5th Cir. 1977).

     The district court's dismissal of McQueen’s complaint as

frivolous and for failure to state a claim on which relief can be

granted is AFFIRMED.

     AFFIRMED.

Source:  CourtListener

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