Case: 18-50074 Document: 00514861142 Page: 1 Date Filed: 03/06/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-50074
FILED
March 6, 2019
Summary Calendar
Lyle W. Cayce
Clerk
JOHN RICHARD SMITH,
Plaintiff-Appellant
v.
DOCTOR DOUGLAS GREEN; WARDEN BRUCE ARMSTRONG; VALENCIA
POLLARD, Practice Manager, Alfred D. Hughes; NURSE FNU LAURENCE;
NURSE FNU WHITT, also known as Laurence Whitt; NURSE J. MARCUM,
also known as Jennifer Marcum; NURSE T. SMITH, also known as Teri Smith,
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:17-CV-144
Before HIGGINBOTHAM, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
John Richard Smith appeals the summary judgment dismissal of his 42
U.S.C. § 1983 lawsuit, in which he alleged that the defendants were
deliberately indifferent to his serious medical needs by denying or delaying
him treatment for a preexisting tendon injury. We review the district court’s
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 18-50074 Document: 00514861142 Page: 2 Date Filed: 03/06/2019
No. 18-50074
grant of summary judgment de novo, viewing the facts in Smith’s favor. K.P.
v. LeBlanc, 729 F.3d 427, 435 (5th Cir. 2013).
Smith renews his claim that the defendants were deliberately indifferent
to his serious medical needs by delaying treatment for his ankle injury, which,
he argues, resulted in pain and further damage to other parts of his leg. The
competent summary judgment evidence—specifically, Smith’s medical
records—defeats any claim that the defendants acted with a wanton disregard
for his serious medical needs. The records demonstrate that the treating
physician decided to continue treating Smith’s preexisting injury with pain
medication; his prescriptions were routinely renewed when requested; Smith
was permitted to visit medical when requested; he missed one appointment
and left another before receiving medical treatment; and he provided no
evidence showing that his condition worsened due to any alleged delay in
treatment. See Farmer v. Brennan, 511 U.S. 825, 839 (1994); Easter v. Powell,
467 F.3d 459, 463 (5th Cir. 2006); Gobert v. Caldwell, 463 F.3d 339, 346 (5th
Cir. 2006). To the extent that that the true nature of Smith’s complaint is a
challenge to the medical judgment exercised by prison medical staff in
determining the appropriate course of his treatment or by not ordering
additional testing or an orthopedist referral, those complaints do not give rise
to a constitutional violation. See Gobert, 463 F.3d at 346. 1
Accordingly, the district court’s judgment is AFFIRMED. See FED.
R. CIV. P. 56(a). Smith’s motions for the appointment of counsel and to submit
new supporting evidence are DENIED.
1 Smith has failed to brief, and has therefore abandoned, any argument challenging
the district court’s determinations that all defendants were immune from liability in their
official capacities under the Eleventh Amendment and that the deliberate indifference claim
against Warden Bruce Armstrong failed for lack of personal involvement and lack of
standing. See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987).
2