IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 15, 2008
No. 07-30766
Summary Calendar Charles R. Fulbruge III
Clerk
DAVID D CLIFFORD, also known as Michael J Coleman
Plaintiff-Appellant
v.
JANE DOE, Nurse Practitioner at Elayn Hunt Correctional Center; JOHN DOE,
Emergency Medical Technician at Elayn Hunt Correctional Center; J DOE,
Medical Records Custodian at Elayn Hunt Correctional Center; ROBERT Y
HENDERSON; NATE CAIN, II; PESHOFF; JOSEPH RUEBUSH; MARGARET
AUBIN; J BORDELON; LINDA DERISE; CAPTAIN THOMPSON, at PAUL
PHELPS CORRECTIONAL CENTER; DELANIE BURGESS; CAPTAIN
CLOUD; LIEUTENANT COLONEL CLOUSE; LIEUTENANT COLONEL
MYERS; LIEUTENANT PAUL A ROYER; ASSISTANT WARDEN ROY
WILLIAMS; COLONEL WILSON
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:06-CV-2368
Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
*
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should not be published and is not precedent except under the limited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. 07-30766
David D. Clifford, Louisiana prisoner # 109543, appeals the district court’s
dismissal of his 42 U.S.C. § 1983 civil rights complaint against several state and
federal prison officials. Clifford contends that the district court erred when it
dismissed his denial of medical care claims for failure to state a claim upon
which relief may be granted pursuant to 28 U.S.C. § 1915A(b)(1). Specifically,
he argues that he had a serious pre-existing back condition, that a private
physician prescribed a specific treatment plan, and that the medical staff at the
C. Paul Phelps Correctional Center (PCC) refused to comply with the private
physician’s treatment plan. Clifford also argues that the PCC medical staff
denied him medication for his back condition and that the only treatment he
received was one day of physical therapy. This court reviews dismissals for
failure to state a claim under § 1915A de novo. Bazrowx v. Scott, 136 F.3d 1053,
1054 (5th Cir. 1998).
Clifford’s amended complaint and the medical records attached to his
pleadings show that on May 3, 2006, he was taken to the W.O. Moss Regional
Medical Center, where he was examined by Dr. Butler. Without ordering an x-
ray, Dr. Butler prescribed 800mg of Motrin three times a day for ten days. He
also prescribed a back brace and Capsaicin ointment twice a day, to be ordered
by Dr. Crawford at the PCC. Two days later, Dr. Crawford ordered an x-ray of
Clifford’s lumbar spine. The x-ray results showed that Clifford’s alignment, disc
spacing, and sacroiliac joints were within normal limits. Based on these results,
the PCC medical staff determined that no back brace or Capsaicin ointment
would be issued. The PCC medical staff also noted that Clifford was taking
400mg of Motrin twice a day. A doctor’s failure to follow the advice of another
doctor suggests nothing more than a difference in medical opinion. See Stewart
v. Murphy, 174 F.3d 530, 535 (5th Cir. 1999). Further, the question whether
“additional diagnostic techniques or forms of treatment is indicated is a classic
example of a matter for medical judgment.” Estelle v. Gamble, 429 U.S. 97, 107
(1976). Therefore, the PCC medical staff’s failure to follow Dr. Butler’s
2
No. 07-30766
recommended treatment plan did not constitute a deliberate indifference to his
serious medical needs. See Stewart, 174 F.3d at 535.
Clifford’s amended complaint and the medical records attached to his
pleadings also show that Nurse Margaret Aubin prescribed physical therapy for
his back problems. Clifford complained that he was unable to perform the
prescribed exercises and attempted to refuse the therapy. In addition to physical
therapy, Aubin told Clifford that she would prescribe Motrin for his back pain.
However, when he went to pick up his medication, Clifford was told that because
he had sufficient funds, he could purchase the Motrin in the prison canteen.
Although Clifford alleged that indigent inmates could only purchase a limited
amount of Motrin each month and that this cap was insufficient to meet his pain
management needs, he did not allege that he purchased the maximum amount
of Motrin allowed and that he was denied additional tablets. Further, prison
records show that Clifford was obtaining Motrin from the prison canteen free of
charge. Clifford’s allegations were insufficient to state a constitutional violation
because, at most, they amounted to a disagreement with the course of medical
care provided by the PCC medical staff. Therefore, the district court did not err
when it dismissed Clifford’s denial of medical care claims for failure to state a
claim upon which relief may be granted. Varnado v. Lynaugh, 920 F.2d 320, 321
(5th Cir. 1991).
Clifford also contends that the district court erred when it dismissed his
claims against Richard Stalder as legally frivolous pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(i). Specifically, he argues that as Secretary of the Louisiana
Department of Public Safety and Corrections (DPSC), Stalder was responsible
for the creation and implementation of Health Care Policy No. HC-03, which
provided that DPSC health care providers were not obligated to follow any
recommendation or instruction by private physicians, hospitals, or other health
care providers. This court reviews dismissals for frivolousness under
3
No. 07-30766
§ 1915(e)(2)(B)(i) for abuse of discretion. Harper v. Showers, 174 F.3d 716, 718
(5th Cir. 1999).
As previously discussed, a doctor’s failure to follow the advice of another
doctor suggests nothing more than a difference in medical opinion. See Stewart,
174 F.3d at 535. Thus, a policy which allows prison medical officials to either
approve or disapprove a private physicians’s recommendation raises no
constitutional issue. See id. Therefore, the district court did not abuse its
discretion when it dismissed Clifford’s claims against Stalder as legally frivolous.
See Harper, 174 F.3d at 718.
Clifford also contends that the district court erred when it dismissed his
due process claims with prejudice. He argues that the dismissal should have
been without prejudice until such time as he could satisfy the requirements of
Heck v. Humphrey, 512 U.S. 477 (1994). In Boyd v. Biggers, 31 F.3d 279, 284
(5th Cir. 1994), this court expressly held that it was not error to dismiss a
complaint pursuant to Heck with prejudice. Therefore, the district court did not
err when it dismissed Clifford’s due process claim arising from the disciplinary
proceeding in which he lost good time credit with prejudice until the Heck
conditions were met. See id.
Clifford also contends that the district court erred when it declined to
exercise supplemental jurisdiction over his state law claims. As previously
discussed, the district court did not err when it dismissed Clifford’s federal
claims. Therefore, the district court did not abuse its discretion in dismissing his
state law claims without prejudice. See Bass v. Parkwood Hosp., 180 F.3d 234,
246 (5th Cir. 1999).
Clifford also contends that the district court erred when it denied his
motion for the appointment of counsel. Aside from conclusory allegations,
Clifford has failed to show that his case was factually complex or that he was
incapable of adequately presenting it. Therefore, he has failed to demonstrate
that the district court abused its discretion when it implicitly affirmed the
4
No. 07-30766
magistrate judge’s denial of his motion for the appointment of counsel. See Cupit
v. Jones, 835 F.2d 82, 86 (5th Cir. 1987).
Finally, Clifford does not challenge the district court’s dismissal of his
claims against Harry G. Lappin, Nurse Durham, or the unnamed defendants.
He also does not challenge the district court’s dismissal of the denial of medical
care claims arising from his incarceration at the Elayn Hunt Correctional
Center, or his equal protection, Americans with Disabilities Act, and Federal
Tort Claims Act claims. Further, Clifford does not challenge the district court’s
determination that: (1) his claims for injunctive relief were moot; (2) the
disciplinary proceedings in which he was not deprived of good time credit did not
implicate due process concerns; (3) to the extent his complaint could be
construed as seeking habeas relief, he failed to exhaust state court remedies; (4)
he failed to state a claim for denial of access to the courts; and (5) the two-week
denial of out-of-cell exercise was insufficient to establish an Eighth Amendment
violation. Therefore, these issues are deemed abandoned. See Hughes v.
Johnson, 191 F.3d 607, 613 (5th Cir. 1999).
Accordingly, the district court’s judgment is AFFIRMED.
5