IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-41108
Summary Calendar
EDWIN EARL KIMBRELL,
Plaintiff-Appellant,
v.
WAYNE SCOTT, Executive Director, Texas Department
of Criminal Justice; GARY L. JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL
DIVISION; LANNETTE LINTHICUM, Medical Director;
ROBERT R. TREON, Warden; JAMES L. JONES, Major;
UNIDENTIFIED UNIDENTIFIED, State Classification Committee
Member; UNIDENTIFIED UNIDENTIFIED, Classification
Committee Member; UNIDENTIFIED UNIDENTIFIED, Classification
Committee Member; GUILLERMO PORRAS, Medical Director;
LOREN L. BREWER, Health Service Manager; UNIDENTIFIED
UNIDENTIFIED, Medical Aide; UNIDENTIFIED UNIDENTIFIED,
Medical Aide; UNIDENTIFIED UNIDENTIFIED, Medical Aide;
UNIDENTIFIED UNIDENTIFIED, Medical Aide; UNIDENTIFIED
UNIDENTIFIED, Medical Aide; UNIDENTIFIED UNIDENTIFIED,
Medical Aide; RONALD L. KELLY, Food Service Manager;
SONIA D. ROCKER, Food Service Manager,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:99-CV-267
--------------------
March 6, 2001
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
*
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this opinion should not be published and is not precedent except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. 00-41108
-2-
Edwin Earl Kimbrell (Kimbrell), Texas prisoner #429359,
appeals the district court's dismissal of his civil rights action
for failure to exhaust his administrative remedies as required by
42 U.S.C. § 1997e(a). We address only those claims raised before
this court and the district court, namely that Kimbrell's
placement in administrative segregation put his health at risk
and that defendants acted with deliberate indifference to his
"serious medical needs." See Yohey v. Collins, 985 F.2d 222,
224-25 (5th Cir. 1993) and Leverette v. Louisville Ladder Co.,
183 F.3d 339, 342 (5th Cir. 1999), cert. denied, 528 U.S. 1138
(2000).
We review a dismissal under § 1997e(a) de novo. Powe v.
Ennis, 177 F.3d 393, 394 (5th Cir. 1999). The record indicates
that Kimbrell did not administratively exhaust his claim that
administrative segregation is a risk to his health. Even if this
claim were exhausted, it fails to raise a constitutional issue.
His claim that prison regulations forbid placing prisoners with
serious medical needs in administrative segregation does not give
rise to a constitutional claim under 42 U.S.C. § 1983. See
Hernandez v. Estelle, 788 F.2d 1154, 1158 (5th Cir. 1986).
Moreover, unsuccessful medical treatment, acts of negligence,
neglect, or medical malpractice, or a prisoner’s disagreement
with prison officials regarding medical treatment are
insufficient to establish an unconstitutional denial of medical
care. Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991).
His placement in administrative segregation does not constitute a
violation of a constitutionally cognizable liberty interest. See
No. 00-41108
-3-
Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995). Whether this
claim was administratively exhausted is irrelevant to this civil
rights suit because the claim cannot succeed even if exhausted.
The district court's dismissal of this claim is therefore
AFFIRMED.
The only remaining claim presented to this court is that
defendants were deliberately indifferent to Kimbrell's "serious
medical needs." We liberally construe "serious medical needs" to
include Kimbrell's claims that he was refused his prescribed
medication and that defendants Ronald Kelly and Sonia Rocker
denied him his prescribed diet. These claims were exhausted, and
they do raise a constitutional question under 42 U.S.C. § 1983.
See Payne v. Lynaugh, 843 F.2d 177, 178 (5th Cir. 1988).
Accordingly, the dismissal of these claims is REVERSED, and they
are REMANDED to the district court for further proceedings. We
express no view on how these claims should be decided.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.