United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 17, 2006
Charles R. Fulbruge III
Clerk
No. 05-40715
Summary Calendar
BILLY F. ALLEN; ALONZO LONGORIA; MICHAEL D. NEAL;
WILLIAM JACKSON; MIKE TOMLINSON; ERNESTO R. HINOJOSA, SR.;
FELIPE P. RODRIGUEZ,
Plaintiffs-Appellants,
versus
GARY JOHNSON, Director, Texas Department of Criminal Justice;
LANNETTE LINCTHICUM, Medical Doctor, Deputy Director Texas
Department of Criminal Justice Health Care Services; UTMB --
CORRECTIONAL MANAGED HEALTH CARE; BEN RAIMER, Medical Doctor,
Vice President for Community Outreach University of Texas Medical
Branch; OWEN J. MURRAY, DO, Associate Medical Director University
of Texas Medical Branch; TEXAS TECH UNIVERSITY HEALTH SCIENCE
CENTER; DENISE DESHIELDS, Doctor, Medical Director,
Defendants-Appellees.
--------------------
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 3:03-CV-998
--------------------
Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges
PER CURIAM:*
The plaintiffs, all Texas prisoners who have tested positive
for the Hepatitis C Virus (HCV), appeal the district court’s
order granting summary judgment to the defendants in their 42
U.S.C. § 1983 suit. In their suit, the plaintiffs alleged that
*
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this opinion should not be published and is not precedent except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. 05-40715
-2-
the defendants were and remain deliberately indifferent to their
serious medical needs by failing to provide adequate testing and
treatment for HCV. The plaintiffs have received treatment for
HCV, but they argue that the defendants have failed to comply
with the accepted standard of care. The plaintiffs fail to show
that the defendants have been deliberately indifferent, however,
because their disagreement with their specific courses of
treatment is insufficient to establish deliberate indifference.
See Domino v. Texas Dep’t of Criminal Justice, 239 F.3d 752, 756
(5th Cir. 2001) (stating that deliberate indifference requires a
showing that prison officials acted with wanton disregard for
medical needs); Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir.
1991) (stating that unsuccessful medical treatment, negligence,
neglect, and malpractice are insufficient to give rise to a
§ 1983 cause of action). Because the plaintiffs do not brief the
district court’s dismissal based on sovereign immunity of UTMB
and the Texas Tech University Health Sciences Center, their
claims against those defendants are abandoned. See Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
The plaintiffs also argue that the district court
erroneously denied their motions for class certification and for
appointment of counsel. The magistrate judge originally denied
class certification subject to reconsideration as the case
developed. We conclude that the district court did not abuse its
discretion by granting summary judgment without re-examining the
No. 05-40715
-3-
certification issue. See Bell Atlantic Corp. v. AT&T Corp., 339
F.3d 294, 301 (5th Cir. 2003); Floyd v. Bowen, 833 F.2d 529, 534
(5th Cir. 1987). The district court also did not abuse its
discretion by denying the motion for appointment of counsel. See
Ulmer v. Chancellor, 691 F.2d 209, 212-13 (5th Cir. 1982); FED.
R. CIV. P. 23(g).
The plaintiffs further argue that the district court failed
to rule on their motion to strike an affidavit in support of the
defendants’ summary judgment motion and that the district court
erroneously relied on the defective affidavit. The district
court’s denial of the motion was implicit in its order granting
summary judgment. See Norman v. Apache Corp., 19 F.3d 1017, 1021
(5th Cir. 1994). Further, by attempting to incorporate by
reference arguments made in their motion to strike, the
plaintiffs have inadequately briefed how the affidavit was
defective. See Peel & Co., Inc. v. The Rug Market, 238 F.3d 391,
398-99 (5th Cir. 2001); Yohey, 985 F.2d at 224-25.
Finally, the plaintiffs argue that the district court
erroneously denied their motion for a preliminary injunction. We
conclude, however, that the district court did not abuse its
discretion. See White v. Carlucci, 862 F.2d 1209, 1211 (5th Cir.
1989) (stating that this court reviews the denial of a
preliminary injunction for an abuse of discretion and will
reverse “only under extraordinary circumstances”).
AFFIRMED.