IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 00-10289
Summary Calendar
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ROBERT V. KENNEDY,
Plaintiff-Appellant,
versus
D. WILMETH; RALPH THOMAS, M.D.; NURSE TYE, R.N.,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
(5:99-CV-63-C)
_________________________________________________________________
September 26, 2000
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Robert V. Kennedy, Texas prisoner #580618, appeals, pro se,
from the 28 U.S.C. § 1915(e)(2)(B)(ii) dismissal, for failure to
state a claim, of his prisoner civil rights action. (The dismissal
followed a hearing pursuant to Spears v. McCotter, 766 F.2d 179
(5th Cir. 1985).) Kennedy asserts: he received inadequate medical
care for an infection in his foot that spread to other parts of his
body; and prison officials retaliated against him for pursuing
prison grievances.
*
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this opinion should not be published and is not precedent except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.
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); see Farmer v. Brennan, 511 U.S. 825 (1994). “Disagreement
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).
The magistrate judge found that Kennedy received extensive
treatment for his foot condition, including being referred to two
specialists outside the prison for diagnosis and treatment. Because
Kennedy’s appellate contention regarding his medical-care amounts
to no more than a disagreement with the treatment he received, his
contention is unavailing.
In his complaint, the sole episode Kennedy linked to
retaliation was that prison officials had forced him to work for
four hours per day after he filed a grievance. But, he offered no
testimony at the Spears hearing regarding retaliation. This claim,
alone, does not give rise to an inference of any retaliatory
motivation. Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995),
cert. denied, Palmero v. Woods, 516 U.S. 1084 (1996). Kennedy
raises his other claims of retaliation for the first time on
appeal. Because resolution of those claims would require findings
of fact by this court, they cannot demonstrate plain error. See
Robertson v. Plano City of Texas, 70 F.3d 21, 23 (5th Cir. 1995).
2
AFFIRMED
3