Cuellar v. Livingston , 321 F. App'x 373 ( 2009 )


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  •            IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    April 3, 2009
    No. 08-10349
    Summary Calendar                    Charles R. Fulbruge III
    Clerk
    JAIME MENDEZ CUELLAR
    Plaintiff-Appellant
    v.
    BRAD LIVINGSTON; BRIAN W RODEEN; HERMAN NUSZ; JULITO UY
    Defendants-Appellees
    Appeal from the United States District Court
    for the Northern District of Texas
    USDC No. 2:07-CV-158
    Before SMITH, STEWART and SOUTHWICK, Circuit Judges.
    PER CURIAM:*
    Jaime Mendez Cuellar, Texas prisoner # 854843, appeals the district
    court’s dismissal of his 
    42 U.S.C. § 1983
     civil rights complaint against Brad
    Livingston, Executive Director of the Texas Department of Criminal Justice,
    Correctional Institutions Division; Brian W. Rodeen, Warden of the William P.
    Clements Unit (Clements Unit); Herman Nusz, Head of Nursing at the Clements
    Unit; and Dr. Julito Uy. He contends that the district court erred and violated
    his constitutional rights when it sua sponte dismissed his in forma pauperis
    *
    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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-10349
    (IFP) complaint prior to the issuance of summons, without a hearing, and
    without allowing him to amend the complaint or propound discovery.
    Although the district court dismissed Cuellar’s complaint without a
    hearing, Cuellar was afforded the opportunity to develop his factual allegations
    and plead his best case. See Eason v. Thaler, 
    14 F.3d 8
    , 9-10 (5th Cir. 1994);
    Jacquez v. Procunier, 
    801 F.2d 789
    , 793 (5th Cir. 1986). Therefore, the district
    court did not err when it sua sponte dismissed Cuellar’s IFP complaint as
    frivolous and for failure to state a claim upon which relief may be granted. See
    
    28 U.S.C. § 1915
    (e)(2)(B); 28 U.S.C. § 1915A(a), (b)(1).
    Cuellar also contends that the district court erred when it dismissed his
    denial of medical care claims against Dr. Uy as frivolous. This court reviews
    dismissals for frivolousness for abuse of discretion. Harper v. Showers, 
    174 F.3d 716
    , 718 (5th Cir. 1999).
    The district court determined that Cuellar’s claims against Dr. Uy were
    legally frivolous because, even when liberally construed, they stated only a claim
    of negligence. Cuellar does not specifically challenge the district court’s analysis.
    Instead, he reasserts that the Clements Unit physicians were deliberately
    indifferent to his serious medical needs in violation of the Eighth Amendment
    because they failed to address and successfully treat his chronic pain, failed to
    refer him to a chiropractor or bone specialist, and failed to perform an MRI when
    requested.
    Cuellar’s disagreement with the course of medical treatment does not
    constitute deliberate indifference. See Varnado v. Lynaugh, 
    920 F.2d 320
    , 321
    (5th Cir. 1991). 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 district
    court did not abuse its discretion when it dismissed Cuellar’s claims against Dr.
    Uy as frivolous. See Varnado, 
    920 F.2d at 321
    .
    2
    No. 08-10349
    Cuellar does not challenge the district court’s dismissal of his claims
    against Livingston, Rodeen, and Nusz for failure to state a claim upon which
    relief may be granted. Specifically, he does not challenge the district court’s
    determination that supervisory officials cannot be held liable for the actions of
    their subordinates and that he failed to allege any personal involvement on their
    part. Therefore, these claims are deemed abandoned. See Hughes v. Johnson,
    
    191 F.3d 607
    , 613 (5th Cir. 1999).
    Finally, Cuellar’s newly raised claim that the defendants were deliberately
    indifferent to his serious medical needs when they discontinued his prescription
    for Tramadol should not be considered by this court. See Leverette v. Louisville
    Ladder Co., 
    183 F.3d 339
    , 342 (5th Cir. 1999).
    Accordingly, the district court’s judgment is AFFIRMED.          Cuellar’s
    motions for authority of jurisdiction, amending the complaint, a petition for
    review under “Rule 15” and “Local Rule 47,” a bench warrant ad testificandum,
    and the appointment of counsel are DENIED.
    3