IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-30501
Summary Calendar
ELMO HUMPHREY, III,
Plaintiff-Appellee,
versus
LOUISIANA STATE PENITENTIARY; ET AL.,
Defendants,
HAND, DR.; TARVER, DR.; WIEST, DR.; BURL CAIN,
Defendants-Appellants.
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Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 99-CV-450-B
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January 10, 2002
Before DUHÉ, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:1
Elmo Humphrey, III, filed a civil rights complaint against the
defendants, alleging that they were deliberately indifferent to his
serious medical needs in refusing and/or misdiagnosing and
improperly treating his medical condition. The defendants appeal
the district court’s denial of their motion to dismiss based on
qualified and Eleventh Amendment immunity.
1
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that this opinion should not be published and is not precedent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.
We have jurisdiction to review this order to the extent it
turns on an issue of law. See Mitchell v. Forsyth, 472 U.S. 511,
524-25 (1985). We review de novo the district court’s denial of
the motion to dismiss.
We note first that the district court failed to consider the
adequacy of Appellee’s allegations under the rubric of Schultea v.
Wood, 47 F.3d 1427, 1432-33 (5th Cir. 1995) (en banc) (imposing a
“heightened pleading” standard on plaintiff when claims are met by
a qualified immunity defense).
Humphrey made inconsistent allegations that the defendant
doctors failed to treat him and treated him for a condition
different than the one he suffered. Humphrey’s allegation that the
doctors misdiagnosed and failed to properly treat his gangrene and,
instead, treated him for hemorrhoids amounts, at most, to
malpractice, neglect, or negligence, not deliberate indifference.
This does not establish an unconstitutional denial of care. See
Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991). To the
extent that Humphrey alleged that one of the doctors may have
refused to treat him, read in the context of all of Humphrey’s
allegations that he was misdiagnosed and treated for hemorrhoids,
the refusal-to-treat appears to be an allegation that a doctor did
not treat Humphrey when or in a manner that Humphrey wanted. At
most, this amounts to a disagreement by Humphrey with the type and
timing of the treatment he received, and is insufficient to state
an unconstitutional denial of medical care. See Varnado, 920 F.2d
at 321.
2
Humphrey thus has not stated a valid claim of deliberate
indifference to medical needs in connection with the defendant
doctors’ treatment of his medical condition. Accordingly, the
defendant doctors were entitled to qualified immunity. See Harris
v. Victoria Indep. Sch. Dist., 168 F.3d 216, 223 (5th Cir. 1999).
The district court adopted the magistrate judge’s conclusion
that Humphrey’s allegation that Warden Cain had in place a
deficient medical delivery policy was sufficient to state a claim.
However, in light of Humphrey’s allegation that he actually
received treatment, albeit for a condition other than the one he
actually suffered, his conclusional allegation regarding a
deficient medical delivery policy must fail. Even if the Warden
had such a deficient policy, Humphrey failed to allege that the
policy caused his injury or a constitutional violation by the
defendant doctors.
Because Humphrey failed to allege a constitutional violation
by the defendant doctors or by Warden Cain, the district court
erred in concluding that the Appellants were not entitled to
qualified immunity.
We VACATE the district court’s denial of the defendants’
motion to dismiss based on qualified immunity. As this leaves no
remaining federal claims involved in the case, the district court
should decline to exercise jurisdiction under 28 U.S.C.
§ 1367(c)(3) over the supplemental state-law claims. We VACATE the
denial of the motion to dismiss based on Eleventh Amendment
3
immunity and REMAND those claims to district court for dismissal
without prejudice.
VACATED AND REMANDED.
4