Ivory Simon v. James LeBlanc

Case: 15-30157 Document: 00513296977 Page: 1 Date Filed: 12/07/2015

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals

No. 15-30157
Fifth Circuit

FILED
Summary Calendar December 7, 2015
Lyle W. Cayce
IVORY LANE SIMON, Clerk

Plaintiff-Appellant

v.

JAMES LEBLANC; J. TIM MORGAN; DOCTOR KUPLESKY; DANIEL MARR;
JOHN DOE; JOAN DOE; XYZ INSURANCE COMPANY,

Defendants-Appellees

Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:14-CV-2606

Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM: *
Ivory Lane Simon, Louisiana prisoner # 505008, filed a complaint under
42 U.S.C. § 1983, alleging that the defendants were deliberately indifferent to
his serious medical needs. Simon asserted that, following his transfer to Winn
Correctional Center, the defendants would not permit him to continue taking
previously prescribed medications for various ailments and instead prescribed

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 15-30157

alternative, generic brands of the medications. He suggested that he could not
take the generic brands because they possibly contained sulfa, to which he had
an allergy that could cause symptoms of Stevens-Johnson Syndrome, and the
defendants should have ascertained whether the medicines contained sulfa or
allowed him to be treated by another doctor. Simon also asserted that he was
warned that he would be written up for malingering if he initiated further sick
calls related to his Stevens-Johnson Syndrome and was denied medical care in
retaliation for complaining about his treatment. The district court dismissed
Simon’s complaint for failure to state a claim under 28 U.S.C. §§ 1915(e)(2)(B)
and 1915A, and, therefore, our review is de novo using the same standard that
applies to dismissals pursuant to Federal Rule of Civil Procedure 12(b)(6). See
Samford v. Dretke, 562 F.3d 674, 678 (5th Cir. 2009).
Simon’s allegations are insufficient to state a claim that the defendants
were deliberately indifferent to a substantial risk of serious harm. See Farmer
v. Brennan, 511 U.S. 825, 837 (1994). The refusal to provide medicine that was
prescribed at another facility or by a different doctor does not rise to the level
of deliberate indifference. See Stewart v. Murphy, 174 F.3d 530, 535 (5th Cir.
1999). Furthermore, to the extent that Simon contests the decision to prescribe
generic medicines instead of the medicines that he previously was prescribed,
his dissatisfaction does not give rise to a claim under § 1983. See Varnado v.
Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991).
Simon otherwise has not alleged a claim of deliberate indifference. The
medical records do not reflect, and Simon did not allege in his complaint, that
he was administered medications that contained sulfa or was required medical
care for a resulting allergic reaction. Instead, he refused the medication that
was recommended because it differed from that which he had been prescribed;
thus, any ailments that he is experiencing are not attributable to medicines

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No. 15-30157

prescribed at Winn. To the extent that his ailments were treated by his prior
medications, he has not alleged facts to suggest that the defendants purposely
refused to prescribe those medications for improper reasons; the physicians at
Winn proposed to treat his conditions with generic versions of the medications,
and his refusal to accept the medicines because of his disagreement with their
efficacy does not support a claim of deliberate indifference. See Varnado, 920
F.2d at 321; Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir. 1997).
Further, Simon has not alleged any facts to support that the defendants
intentionally recommended erroneous treatment (e.g., deliberately prescribed
medications with sulfa despite knowing that Simon was allergic) and, to the
extent that the defendants prescribed generic medications without confirming
whether they contained sulfa, that conduct, at most, is negligence, which is not
actionable. See Varnado, 920 F.2d at 321. The defendants were not required
to send Simon to another doctor or conduct further diagnostic tests. See Estelle
v. Gamble, 429 U.S. 97, 107 (1976). Simon has not alleged any facts to suggest
that the defendants denied him medical treatment for a serious medical need
at any time. The record instead establishes that, on the instances when Simon
sought medical care, he resisted the recommended treatment. These facts do
not prove a claim of deliberate indifference or retaliation. See Norton, 122 F.3d
at 292; Jones v. Greninger, 188 F.3d 322, 324-25 (5th Cir. 1999).
AFFIRMED.

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