Kittelson v. Nafrawi

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 14, 2004

Charles R. Fulbruge III
Clerk
No. 04-10156
Summary Calendar

BRUCE LEE KITTELSON,

Plaintiff-Appellant,

versus

ADEL NAFRAWI; STEPHEN PECK; STANFORD LEHRER; STEVEN REILLY;
LLENE MAXWELL, Licensed Vocational Nurse; CHRISTY KING,
Licensed Vocational Nurse; KAREN HORSLEY, Licensed Vocational
Nurse; BOB PREWIT, Physician’s Assistant; WILLIAM CASADY,
Licensed Vocational Nurse; WILLIAM GONZALES, Medical Director
Texas Tech University Health Science Center-CMHC; HENDRICKS
HOSPITAL; JAMES DUKE, Senior Warden; ROBERT EASON, Assistant
Warden; CARY COOK, Assistant Warden,

Defendants-Appellees.

--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:02-CV-93
--------------------

Before JOLLY, HIGGINBOTHAM, and PICKERING, Circuit Judges.

PER CURIAM:*

Bruce Lee Kittelson, Texas prisoner # 818614, appeals the

magistrate judge’s dismissal of his 42 U.S.C. § 1983 civil rights

action against Adel Nafrawi, Stephen Peck, Stanford Lehrer,

Steven Reilly, Llene Maxwell, Christy King, Karen Horsley, Bob

Prewit, William Casady, James Duke, Robert Eason, Cary Cook,

*
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this opinion should not be published and is not precedent except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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Hendricks Hospital, and William Gonzalez as frivolous pursuant to

28 U.S.C. §§ 1915(e)(2)(B), 1915A(b)(1), and 42 U.S.C.

§ 1997e(c)(1)-(2).

Kittelson has abandoned his claims against Stanford Lehrer,

Steven Reilly, LLene Maxwell, Christy King, Bob Prewit, William

Casady, James Duke, Robert Eason, Cary Cook, Hendricks Hospital,

and William Gonzalez by failing to argue them in his brief. See

Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).

Kittelson has also abandoned his claims that: (1) the defendants

interfered with his medically prescribed treatment; (2) the

defendants retaliated against him by assigning him to work at the

garment factory and to the top floor of his dorm; (3) emergency

room doctors inserted chest tubes without anesthesia; and (4) the

defendants used excessive restraints while he was in the

hospital. See id. Moreover, Kittelson has failed to brief and,

thus, abandoned any claims arising out of his medical care prior

to September 20, or after November 2, 2001. See id.

Accordingly, the magistrate judge’s judgment dismissing the

foregoing claims and defendants is AFFIRMED.

Kittelson contends that the magistrate judge erred when she

dismissed his deliberate indifference claims as frivolous.

Specifically, Kittelson contends that despite his repeated

requests for treatment and complaints of serious breathing

difficulties, chest pain, numbness in his extremities, fever, and

migraine headaches, Drs. Nafrawi and Peck and Nurse Horsley
 No. 04-10156
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deliberately delayed and denied him medical care from September

20, through November 2, 2001, resulting in severe pain and the

loss of one-third of his left lung. Kittelson also argues that

the magistrate judge erred in using his medical records to rebut

his allegations of deliberate indifference because these records

were falsified and, thus, unreliable.

The magistrate judge improperly relied on Kittelson’s

medical records to counter his complaint and Spears hearing

testimony. See Williams v. Luna, 909 F.2d 121, 124 (5th Cir.

1990). The medical records contradict Kittelson’s contention

that he was denied any treatment from September 20, through

November 2, 2001. Further, Kittelson questions the authenticity

of these records. Therefore, the magistrate judge abused her

discretion in dismissing this claim as frivolous. See Norton v.

Dimazana, 122 F.3d 286, 291 (5th Cir. 1997). Accordingly, the

magistrate judge’s judgment dismissing Kittelson’s claims against

Drs. Nafrawi and Peck and Nurse Horsley that he was delayed and

denied medical care from September 20, through November 2, 2001,

is VACATED and the case is REMANDED to the district court for

further proceedings consistent with this opinion.

Kittelson’s claim that his receipt of other inmates’

medication was negligent, medical malpractice, and illegal is not

sufficient to establish deliberate indifference. See Varnado v.

Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991). Therefore, the

magistrate judge’s judgment dismissing this claim is AFFIRMED.
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Finally, this court will not consider Kittelson’s claims

raised for the first time on appeal that (1) inmates housed in

the French M. Robertson Unit infirmary are treated differently

than those at Hendricks Hospital in violation of the Fourteenth

Amendment’s Equal Protection Clause and (2) prison officials

illegally went through and confiscated his legal materials on

September 11, 2003. See Leverette v. Louisville Ladder Co., 183

F.3d 339, 342 (5th Cir. 1999).

AFFIRMED IN PART; VACATED AND REMANDED IN PART.