IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20980
Summary Calendar
WENEN JOHNSON,
Plaintiff-Appellant,
versus
GARY L. JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION;
J.N. BARRATT; V.M. PORTER; EATON,
Nurse; WHITE, Nurse,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-98-CV-3779
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June 19, 2001
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Wenen Johnson, Texas state prisoner # 578302, argues that
the district court erred in dismissing his 42 U.S.C. § 1983
complaint for failure to state a claim upon which relief can be
granted in light of his allegations that he was denied adequate
medical care by the prison medical staff and administrators.
Johnson argues that his hand was permanently injured as a result
*
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that this opinion should not be published and is not precedent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. 00-20980
-2-
of the medical staff’s failure to provide him with adequate
medical treatment after he underwent surgery on his hand for
carpal tunnel syndrome. He further argues that the district
court erred in making credibility findings based on evidence
presented at the Spears** hearing.
Review of the district court’s judgment dismissing an action
for failure to state a claim is de novo. See Moore v. Carwell,
168 F.3d 234, 236 (5th Cir. 1999). All of the plaintiff’s
factual allegations are accepted as true, and a dismissal will be
upheld only if it “appears that no relief could be granted under
any set of facts that could be proven consistent with the
allegations.” Id.
Prison officials violate the constitutional proscription
against cruel and unusual punishment when they demonstrate
deliberate indifference to a prisoner’s serious medical needs,
which reflects an unnecessary and wanton infliction of pain.
Wilson v. Seiter, 501 U.S. 294, 297 (1991). A prisoner’s mere
disagreement with the medical treatment given does not rise to
the level of a constitutional violation. See Varnado v. Lynaugh,
920 F.2d 320, 321 (5th Cir. 1991).
Johnson has not shown that the district court erred in
dismissing his complaint for failure to state a claim upon which
relief may be granted. Johnson was allowed to develop his
allegations in responses to interrogatories and by testifying at
the Spears hearing. The medical records, which were admitted
into evidence as business records, support Johnson’s factual
**
Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
No. 00-20980
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allegations concerning his pain and suffering and the objective
symptoms that he was experiencing after his surgery. The records
confirm Johnson’s allegation that his left hand became swollen
after he underwent surgery.
However, Johnson’s hospital medical records, which were not
prepared by the defendant prison medical personnel, also show
that objective testing established that there was no infection in
Johnson’s hand following his surgery. Although he was being
treated at the hospital, the records reflect that Johnson
continued to experience symptoms of swelling, tremor, and
numbness, symptoms which the hospital physician attributed to
probable Reflex Sympathetic Disorder, a potential complication
following surgery for carpal tunnel syndrome. Johnson assertion
that his problems were caused by an infection was merely his
uneducated and erroneous opinion.
Because there was undisputed objective medical evidence that
his hand was not infected, Johnson’s conclusional allegation,
that he developed an infection as a result of improper treatment
by the prison medical staff, failed to state a claim that the
defendants acted with deliberate indifference to Johnson’s
medical condition.
Further, Johnson has not disputed that the medical records
reflect that he received continual medical treatment to correct
the problems developing after his surgery. Johnson’s mere
disagreement with the type and adequacy of the treatment
provided, even if the treatment given involved some degree of
negligence or medical malpractice, does not state a
No. 00-20980
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constitutional claim based on deliberate indifference. Varnado,
920 F.2d at 321. The district court did not err in dismissing
the complaint for failure to state a claim upon which relief can
be granted.
By failing to brief his claims made in the district court
regarding retaliation, the denial of his grievances, and other
claims of deliberate indifference to his medical needs unrelated
to the post-surgical treatment of his hand, Johnson has abandoned
those claims. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th
Cir. 1993).
Johnson’s motion for appointment of counsel is DENIED.
AFFIRMED.