Hernandez v. UTMB Galveston ( 2023 )

Case: 22-20323 Document: 00516756537 Page: 1 Date Filed: 05/19/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________
FILED
May 19, 2023
No. 22-20323
Summary Calendar Lyle W. Cayce
____________ Clerk
Ruben Hernandez,
Plaintiff—Appellant,
versus
UTMB Galveston Hospital; UTMB Galveston Hospital
Staff; Dr. Michael Britt, Medical Doctor; Matthew
McCarley, Medical Doctor; Unknown Nurses; Jester III
Staff; Doctor Hulipas Edgar; Doctor Abram S.; M.
Beck, Nurse Practitioner; L. Onwukwe, Nurse Practitioner; Justin
Thomas, P.M.,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:20-CV-4377
______________________________
Before Higginbotham, Graves, and Ho, Circuit Judges.
Per Curiam:*
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-20323 Document: 00516756537 Page: 2 Date Filed: 05/19/2023
No. 22-20323
Ruben Hernandez, Texas prisoner # 2175847, appeals the dismissal of
his 42 U.S.C. § 1983 suit for failure to state a claim upon which relief may be
granted. Hernandez alleged that the defendants were deliberately indifferent
to his medical care, failed to provide him an adequate language interpreter
during medical appointments, and violated his rights under the Americans
with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213, and Rehabilitation
Act (RA), 29 U.S.C. §§ 701-794.
Because the district court dismissed Hernandez’s complaint for
failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii), we review that
ruling under the same de novo standard that applies to a dismissal under
Federal Rule of Civil Procedure 12(b)(6). See Black v. Warren, 134 F.3d 732,
733-34 (5th Cir. 1998). “We accept all well-pleaded facts as true and view
those facts in the light most favorable to the plaintiff.” Whitley v. Hanna, 726
F.3d 631, 637 (5th Cir. 2013). Nonetheless, a complaint will not proceed
unless it “contain[s] sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (internal quotation marks and citation omitted).
Hernandez argues that the district court erred in dismissing his claims
against Drs. Michael Britt and Matthew McCarly because he raised a
plausible claim that they were deliberately indifferent to his medical needs
before hip surgeries. He asserts that they should have prescribed him
prophylactic antibiotics prior to the procedures because they were aware of
his risk of infection. Hernandez also claims that this omission amounted to
medical malpractice.
Additionally, Hernandez challenges the dismissal of his deliberate
indifference claims against Drs. Abram and Hulipas. He contends that
Dr. Abram violated his rights by not offering or prescribing Hernandez
various medical supplies, such as a wheelchair or rollator. Hernandez claims
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Dr. Hulipas was deliberately indifferent to Hernandez’s medical needs by not
prescribing requested pain medication and medical equipment.
The allegations against these doctors amount to negligence or a
disagreement with treatment, which are not actionable under the Eighth
Amendment. See Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006);
Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991). Additionally,
Hernandez’s claim of medical malpractice is not actionable under the Eighth
Amendment. See Varnado, 920 F.2d at 321.
Hernandez argues that the district court erred when it dismissed his
claims under the ADA. He contends that the district court gave inadequate
weight to the extent of defendants’ failures to address his disability. Even
assuming that Hernandez is correct that his hip injury and subsequent
infection qualifies him for relief under the ADA, he has not stated a plausible
ADA claim because a prerequisite to compensatory damages under the
statute is a claim of intentional discrimination based upon a disability.
Hernandez has only offered a bare assertion in that regard. See Iqbal, 556 U.S.
at 678; Delano-Pyle v. Victoria Cnty., 302 F.3d 567, 575 (5th Cir. 2002).
Because Hernandez does not challenge the dismissal of his RA claim, he has
abandoned that argument. See Brinkmann v. Abner, 813 F.2d 744, 748 (5th
Cir. 1987).
In addition, Hernandez argues that the district court erred in
dismissing his claim that the defendants violated his constitutional rights and
Texas prison policy by denying him an effective interpreter. However, he
fails to state an Eighth Amendment claim because he has not alleged
deliberate indifference to his serious medical needs constituting an
unnecessary and wanton infliction of pain. See Estelle v. Gamble, 429 U.S. 97,
104-06 (1976). Moreover, Hernandez does not specify what medical
decisions he would have made differently with another interpreter. These
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speculative and bare assertions are insufficient to state a facially plausible
claim for relief. See Iqbal, 556 U.S. at 678; Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007). Additionally, Hernandez’s assertion that the defendants
failed to provide an adequate interpreter in violation of prison policy does not
state a claim of a constitutional violation. See Myers v. Klevenhagen, 97 F.3d
91, 94 (5th Cir. 1996).
Finally, Hernandez contends that the district court erroneously
denied his requests for appointment of counsel. However, a review of the
district court docket sheet and record does not reflect that Hernandez filed
any such requests or motions. In any event, he has not demonstrated that
exceptional circumstances warranted the appointment of counsel. See Cupit
v. Jones, 835 F.2d 82, 86 (5th Cir. 1987); Ulmer v. Chancellor, 691 F.2d 209,
212-13 (5th Cir. 1982).
AFFIRMED.
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