Withrow v. Roell , 77 F. App'x 284 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT October 10, 2003
Charles R. Fulbruge III
No. 00-40627 Clerk
JON MICHAEL WITHROW,
Plaintiff-Appellant,
versus
JOSEPH C. ROELL; JERRY BALLARD; PETRA GARIBAY; J. REAGAN, M.D.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Texas
(C-97-CV-256)
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before JOLLY, JONES, and BARKSDALE, Circuit Judges.
PER CURIAM:*
In 2002, we held in this pro se appeal that, without the
express written consent of the parties, a magistrate judge does not
have jurisdiction to try a civil action. Withrow v. Roell, 288
F.3d 199, 204 (5th Cir. 2002); see 28 U.S.C. § 636(c). The Supreme
Court reversed and remanded, holding such consent can be implied
through the parties’ conduct. Roell v. Withrow, 123 S. Ct. 1696,
1703 (2003). Accordingly, before us is the merits-issue not
considered in our previous decision: whether the evidence at trial
*
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this opinion should not be published and is not precedent except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.
was sufficient to support the jury’s finding Defendants’ care of
Plaintiff did not violate the Eighth Amendment. AFFIRMED.
I.
This 42 U.S.C. § 1983 action by Jon Michael Withrow, Texas
prisoner # 675379, claimed Defendants — members of the prison
medical staff where he was incarcerated — violated his Eighth
Amendment rights. Withrow claimed: Defendants were deliberately
indifferent to his medical needs after he suffered a broken leg;
and, as a result, he was forced to undergo a complicated surgery
that left him permanently disabled.
Withrow’s claims against Ballard were dismissed pre-trial.
The jury found for the remaining defendants (Defendants).
II.
A challenge to the sufficiency of the evidence must be raised
by a FED. R. CIV. P. 50(a) motion for judgment as a matter of law at
the conclusion of all the evidence. E.g., Lincoln v. Case, 340
F.3d 283, 290 (5th Cir. 2003); Flowers v. S. Reg’l Physician Serv.,
247 F.3d 229, 238 (5th Cir. 2001); United States ex rel. Wallace v.
Flintco, Inc., 143 F.3d 955, 960 (5th Cir. 1998). Withrow did not
do so. Accordingly, “[i]f any evidence exists that supports the
verdict, it will be upheld”. Lincoln, 340 F.3d at 290 (citing
Flowers, 247 F.3d at 238).
Prison officials violate the Eighth Amendment’s prohibition
against cruel and unusual punishment when they demonstrate
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deliberate indifference to a prisoner’s serious medical needs,
constituting an unnecessary and wanton infliction of pain. Wilson
v. Seiter, 501 U.S. 294, 297 (1991). A prison official acts with
deliberate indifference if he “knows of and disregards an excessive
risk to inmate health or safety; the official must both be aware of
facts from which the inference could be drawn that a substantial
risk of serious harm exists, and he must also draw the inference”.
Farmer v. Brennan, 511 U.S. 825, 837 (1994). Unsuccessful medical
treatment, acts of negligence or medical malpractice, or a
prisoner’s disagreement with prison officials regarding medical
treatment do not constitute an unconstitutional denial of medical
care. Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991);
Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir. 1997).
Withrow’s claim is based substantially on his assertion that
Garibay, a nurse at the prison, mis-diagnosed him as not having a
broken ankle, which led to delay in his receiving treatment.
Garibay testified, however, that she had not diagnosed Withrow
because she was not qualified to do so. Therefore, evidence
supports the verdict that Garibay was not deliberately indifferent.
Withrow also contends that the treatment by prison physician
Dr. Reagan was deliberately indifferent because Dr. Reagan refused
to send Withrow to a hospital before having his leg X-rayed,
despite knowing that no X-ray technician was available. Withrow
testified, however, that an X-ray technician was located two hours
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later. Therefore, evidence supports the verdict that Dr. Reagan
was not deliberately indifferent.
Next, Withrow claims that prison physician Dr. Roell delayed
sending Withrow to the hospital because of cost concerns. Dr.
Roell testified, however: he had to wait for clearance from the
hospital because it had no orthopedic beds open at the time of
Withrow’s injury; and any delay in treatment was because of
Withrow’s stable medical condition and the treatment that already
had been rendered by the prison medical staff. Therefore, evidence
supports the verdict that Dr. Roell was not deliberately
indifferent.
Finally, Withrow contends that his level of care was
constitutionally deficient. The verdict is supported by evidence
of sufficient care provided him by the prison medical staff,
including X-rays, Tylenol, treatment with a splint, immobilization,
ice, and elevation.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
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