UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-41214
Summary Calendar
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JOHN JULIAN DAYSE,
Plaintiff-Appellant,
versus
JIMMY ALFORD; UNKNOWN CASKEY; D. POSTON;
UNKNOWN JEFFCOAT; UNKNOWN GALLOWAY;
KERRY W. RASPBERRY, Dr.,
Defendants-Appellees.
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Appeal from the United States District Court for the
Eastern District of Texas
(6:93-CV-505)
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October 27, 1997
Before JOLLY, BENAVIDES, and PARKER, Circuit Judges.
PER CURIAM:*
John Julian Dayse, Texas state prisoner #498384, appeals from
the district court’s grant of summary judgment to the defendants in
his civil rights suit. Dayse argues that defendant Dr. Raspberry
was deliberately indifferent to his serious medical needs by
*
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this opinion should not be published and is not precedent except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.
failing to schedule follow-up examinations ordered by pulmonary
specialists at the University of Texas Medical Branch Hospital in
Galveston, Texas.
The legal conclusion of deliberate indifference must rest upon
facts clearly evincing wanton actions on the part of the defendant.
Johnson v. Treen, 759 F.2d 1236, 1237 (5th Cir. 1985). A prison
official acts with deliberate indifference “only if he knows that
inmates face a substantial risk of serious harm and [he] disregards
that risk by failing to take reasonable measures to abate it.”
Farmer v. Brennan, 511 U.S. 825, 847 (1994). To prevail, Dayse
must prove facts which, if true, would “clearly evince the medical
need in question and indicate that the denial of treatment was much
more likely than not to result in serious medical consequences, and
additionally that the defendant[] had sufficient knowledge of the
situation so that the denial of medical care constituted wanton
disregard of the prisoner’s rights.” Johnson, 759 F.2d at 1238.
Because Dr. Raspberry met his burden of establishing the
absence of a genuine material fact, Dayse was required to produce
evidence to show the existence of a genuine issue for trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Dayse has not
met this burden. Dayse failed to offer any competent evidence to
rebut Dr. Raspberry’s summary judgment motion.
Accordingly, the judgment is AFFIRMED for essentially the
reasons stated by the district court. See Dayse v. Alford, No.
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6:93cv505 (E.D. Tex. Nov. 12, 1996).
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