Wiggins v. Zein , 108 F. App'x 148 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 18, 2004
Charles R. Fulbruge III
Clerk
No. 03-60710
Summary Calendar
RANDY GENE WIGGINS,
Plaintiff-Appellant,
versus
MOHAMED ZEIN, DR.; JAMES HOLMAN,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:01-CV-532-BN
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Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Randy Gene Wiggins, Texas prisoner #65084,
appeals the jury verdict in favor of the defendants in his pro se,
in forma pauperis 42 U.S.C. § 1983 action. He argues that the
evidence showed that the defendants were deliberately indifferent
to his serious medical needs. We have reviewed the record and the
briefs on appeal and conclude that there was some evidence to
support the jury’s verdict. Phillips v. Frey, 20 F.3d 623, 627
(5th Cir. 1994). The evidence showed that Wiggins received
*
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this opinion should not be published and is not precedent except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.
treatment for his knee injury, including pain medication, x-rays,
ice packs, Ace bandages, and crutches. Farmer v. Brennan, 511 U.S.
825, 839-41 (1994). Wiggins’s allegations demonstrate, at most,
negligence and disagreement with the treatment received; such
conduct does not establish a constitutional violation. Estelle v.
Gamble, 429 U.S. 97, 106 (1976); Varnado v. Lynaugh, 920 F.2d 320,
321 (5th Cir. 1991).
Wiggins asserts next that the district court erred in failing
to instruct the jury (1) that “repeated” instances of negligence
could constitute deliberate indifference and (2) on the types of
damages available. Wiggins did not request these jury instructions
or object to the court’s instructions. As no manifest injustice is
imminent, we need not address the issue. Varnado, 920 F.2d at 321.
Wiggins also asserts that defense counsel improperly obtained
and introduced into evidence mental health records in an effort to
prejudice the jury. Wiggins contends that he was prejudiced by the
tendency of the evidence to show that he was incompetent and that
he had been treated for sexual aggression against children.
Contrary to Wiggins’s assertion, his prison medical file did
contain documents pertaining to his treatment for a psychological
disorder; and Wiggins admitted at trial that defense counsel had
access to his prison medical file. Furthermore, Wiggins’s
testimony with regard to the type of mental disorder from which he
was suffering opened the door to defense counsel’s questioning.
United States v. Delk, 586 F.2d 513, 516 (5th Cir. 1978)(holding
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that defendant cannot object to counsel’s attempt to rebut
proposition once defendant has opened door to line of testimony).
Wiggins’s argument that the trial court prohibited him from
introducing evidence is conclusional. He does not state the nature
of the evidence. Given the foregoing, the judgment of the district
court is affirmed. Wiggins’s motion for oral argument is DENIED.
AFFIRMED; MOTION FOR ORAL ARGUMENT DENIED.
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