The opinion
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 01-31484
Summary Calendar
_______________
MIKE BURGE,
Plaintiff-Appellant,
VERSUS
RICHARD L. STALDER; BURL CAIN; DARREL VANNOY;
PAT TRUETT; BARNES, DR.; DIFATTA, DR.; PREGO, DR.;
TARVER, DR.; UNKNOWN GUTIERREZ, DR.;
LIZZY SMITH,
NURSE;
COCO, SGT.,
EMERGENCY MEDICAL TECHNICIAN;
OTT, SGT.,
EMERGENCY MEDICAL TECHNICIAN,
AND LOUISIANA STATE PENITENTIARY MEDICAL STAFF,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Middle District of Louisiana
m 01-CV-60-A
_________________________
December 4, 2002
Before HIGGINBOTHAM, SMITH, and that because two other inmates received refer-
CLEMENT, Circuit Judges. rals despite noncompliance with the LSP refer-
ral policy, the refusal to refer him violated the
JERRY E. SMITH, Circuit Judge:* equal protection clause of the Fourteenth
Amendment. In addition to these federal con-
Mike Burge filed this civil rights action stitutional claims, Burge alleges certain state
under 42 U.S.C. § 1983 against state and pri- law violations.
son officials, contending that they have dis-
criminatorily denied him necessary medical The defendants aver that Burge’s complaint
care in violation of his rights under the Eighth fails to state a claim for relief; they assert the
and Fourteenth Amendments. He also asserts defense of qualified immunity. Burge seeks
unspecified state law claims. Agreeing with damages and declaratory and injunctive relief.
the district court that Burge has failed to state Specifically, he seeks an injunction ordering
a claim for the violation of constitutional defendants to send him to a liver specialist, to
rights, we affirm the dismissal of the complaint test his blood every sixty days, to order a biop-
in its entirety, under FED. R. CIV. P. 12(b)(6), sy of his liver, and to hire a medical expert to
and without prejudice to any state law claims. evaluate deficiencies in staffing and facilities.
I. II.
Burge alleges that in January 2000 he was We review the grant of a rule 12(b)(6) mo-
diagnosed with hepatitis C. In February, he tion de novo. Oliver v. Scott, 276 F.3d 736,
filed an administrative grievance requesting to 740 (5th Cir. 2002). We accept all well-plead-
be examined by a “liver specialist” and an ed facts as true and view them in the light most
“LSU doctor.” The administrative grievance favorable to the plaintiff. McCartney v. First
was denied. Over the course of the next year, City Bank, 970 F.2d 45, 47 (5th Cir. 1992).
Burge received medical treatment for hepatitis
C and other medical conditions. Twice he re- Burge contends that the refusal to allow
newed his request for a referral to a liver spe- him to see a liver specialist constituted a vio-
cialist; each time, his request was denied, one lation of the Eighth Amendment’s prohibition
doctor telling him that such a referral would be of cruel and unusual punishment. Prison offi-
ordered only if he failed three consecutive liver cials violate the Eighth Amendment when they
function tests. demonstrate deliberate indifference to a pris-
oner’s serious medical condition. Wilson v.
Burge alleges that the failure to refer him to Seiter, 501 U.S. 294, 297 (1991). Deliberate
a liver specialist constituted deliberate indiffer- indifference requires a showing that the official
ence to his hepatitis condition in violation of “knows that the inmate[] face[s] a substantial
the Eighth Amendment’s prohibition of cruel risk of harm and disregards that risk by failing
and unusual punishment. He further alleges to take reasonable measures to abate it.” Far-
mer v. Brennan, 511 U.S. 825, 847 (1994). In
other words, an inmate pursuing a claim for
*
Pursuant to 5TH CIR. R. 47.5, the court has deliberate indifference must show that prison
determined that this opinion should not be pub- official “refused to treat him, ignored his com-
lished and is not precedent except under the limited plaints, intentionally treated him incorrectly, or
circumstances set forth in 5TH CIR. R. 47.5.4.
2
engaged in any similar conduct that would to a liver specialist because his September
clearly evince a wanton disregard for any se- 2000 liver test had been normal. Hand did
rious medical needs.” Domino v. Tex. Dep’t consent, however, to conduct a current liver
of Criminal Justice, 239 F.3d 752, 756 (5th test at Burge’s request.
Cir. 2001) (internal quotation and citation
omitted). The foregoing history demonstrates that
Burge was examined on a regular basis and
Far from demonstrating the deliberate in- treated for various ailments. On these facts, it
difference of the defendants, the facts alleged is impossible to conclude that prison officials
by Burge establish that he had access to neces- and medical staff were indifferent to Burge’s
sary medical care. In 1999, Burge sought hepatitis. Instead, Burge’s complaint merely
treatment from prison doctor Burnes several describes his disagreement with prison policy
times complaining of cramps. In January requiring three abnormal liver tests before re-
2000, Burnes confirmed that Burge had hepa- ferring inmates to a liver specialist. An in-
titis and prescribed vitamins. In May, Burge mate’s disagreement with treatment policy,
was treated by a nurse practitioner for pain in however, does not establish deliberate indiffer-
his left side. He saw the nurse practitioner ence. Norton v. Dimazana, 122 F.3d 286, 292
again in July and was prescribed antibiotics for (5th Cir. 1997). Accordingly, we agree with
a bladder infection. This course of treatment the district court that Burge has failed to state
was followed by a visit to prison doctor Prego, a claim for deliberate indifference.
who informed Burge that he was clear of the
infection. III.
Burge argues that defendants demonstrated
Burge later was treated by yet another phy- favoritism toward certain inmates by referring
sician, Gutierrez, who informed him that he them to liver specialists despite their failure to
could not see a liver specialist and that there meet the LSP referral standard. Specifically,
was nothing wrong with him despite com- Burge alleges that two inmates, Danny Fabre
plaints of pain and pressure. Burge noted in and Bobby Turner, were referred to a special-
his complaint that in the ensuing months he ist despite their noncompliance with the re-
received additional medical attention and was quirement of three abnormal liver tests. Burge
placed on antibiotics by prison doctor DiFatta, contends that such favoritism is contrary to the
who also prescribed a high-fiber diet, a breath- mandate of the Equal Protection Clause “that
ing inhaler, colon medication, and testing. all persons similarly circumstanced shall be
treated alike[.]” Cunningham v. Beavers, 858
In October 2000, Prego conducted Burge’s F.2d 269, 272 (5t h Cir. 1988) (citation omit-
annual physical, which provided another op- ted).
portunity for the medical staff to evaluate his
condition, despite the fact that Burge contends To succeed on his equal protection claim,
the physical was inadequate in comparison to Burge must show “that an illegitimate animus
that given him by a Louisiana State University or ill-will motivated [his] intentionally different
doctor in 1999. Finally, in January 2001, treatment from others similarly situated and
Burge met with prison doctor Hand, who in- that no rational basis existed for such treat-
formed him that he was ineligible for a referral ment.” Shipp v. McMahon, 234 F.3d 907, 916
3
(5th Cir. 2000) (citing Village of Willowbrook standard, and the dismissal for failure to state
v. Olech, 528 U.S. 562, 564 (2000)), cert. a claim was appropriate.
denied, 532 U.S. 1052 (2001). Moreover,
“[d]iscriminatory purpose in an equal pro- IV.
tection context implies that the decisionmaker Burge appeals the denial of his requests to
selected a particular course of action at least in amend his complaint and to conduct discovery
part because of, and not simply in spite of, the before dismissal. We review these rulings for
adverse impact it would have on an identifiable abuse of discretion.2
group.” Woods v. Edwards, 51 F.3d 577, 580
(5th Cir. 1995) (quoting United States v. A.
Galloway, 951 F.2d 64, 65 (5th Cir. 1992)). Although FED. R. CIV. P. 15(a) provides
Therefore, to demonstrate that the alleged that leave to amend “shall be freely given when
disparity of treatment constitutes an equal justice so requires,” permission to amend
protection violation, Burge must demonstrate pleadings “‘is by no means automatic.’” Par-
a discriminatory purpose. Id. ish, 195 F.3d at 763. Rather, “[t]he decision
‘lies within the sound discretion of the district
Burge asserts that certain prisoners, many court.’” Id. (quoting Little v. Liquid Air
of them white, receive preferential medical Corp., 952 F.2d 841, 845-46 (5th Cir. 1992)).
treatment. As evidence of this discrimination, Burge did not seek to amend to present addi-
Burge offers only that Fabre and Turner re- tional allegations that would cure the initial
ceived referrals to liver specialists despite their defective pleading; instead, he sought to add
failure to meet the requirement of three abnor- new defendants and allege facts that arose
mal liver tests and general allegations of dis- after he filed his original complaint. Under
criminatory practices favoring an ill-defined these circumstances, the district court did not
group of inmates. Burge alleges no specific abuse its discretion in refusing to allow Burge
conduct or statements by any of the individual to amend.3
defendants that would support an inference of
discriminatory intent.
In the face of the assertion by a defendant 2
See Parish v. Frazier, 195 F.3d 761, 763 (5th
public official of the defense of qualified im- Cir. 1999); Canady v. Bossier Parish Sch. Bd.,
munity, a § 1983 plaintiff must comply with a 240 F.3d 437, 444 (5th Cir. 2001) (citing Leather-
heightened pleading standard. Baker v. Put- man v. Tarrant County Narcotics Intelligence &
nal, 75 F.3d 190, 195 (5th Cir. 1996). This Coordination Unit, 28 F.3d 1388, 1394 (5th Cir.
heightened pleading standard “requires more 1994)).
than conclusory assertions. It requires claims 3
See Parish, 195 F.3d at 764 (finding no abuse
of specific conduct and actions giving rise to a
of discretion in denying motion to amend where
constitutional violation.” Id. Burge offers on- amendment would increase delay and expand the
ly conclusional allegations of discrimination allegations beyond scope of original complaint);
and fails to identify any specific instances of Ross v. Houston Indep. Sch. Dist., 699 F.2d 218,
discriminatory conduct or expressions of dis- 229 (5th Cir. 1983) (finding no abuse of discretion
criminatory intent. His complaint therefore in denying motion to amend where proposed
fails to comply with the heightened pleading amendment sought to add new issues and parties
and required new discovery and additional hear-
4
Further, “it is within the district court’s dis- the time of the alleged acts.’”5 Given that
cretion to deny a motion to amend if it is fu- Burge failed to state a claim, the district court
tile.” Stripling v. Jordan Prod. Co., 234 F.3d did not err in dismissing his complaint without
863, 872-73 (5th Cir. 2000). A proposed allowing for discovery.
amendment is futile where “the amended com-
plaint would fail to state a claim upon which AFFIRMED.
relief could be granted.” Id. at 873. The al-
legations contained in Burge’s amended com-
plaint are similar in kind to those in the original
and fail to provide any support for his claims
of inadequate medical care and discriminatory
treatment. Because the complaint, as amend-
ed, still would fail to state a claim, it was with-
in the discretion of the district court to deny
Burge’s motion to amend.
B.
Burge contends that the district court erred
by dismissing his claims without allowing dis-
covery that, as Burge appears to concede in
his brief, was never requested. We disagree.
The purposes underlying the doctrine of
qualified immunity support the conclusion that
it is an immunity not merely from liability but
also from the costs associated with trial.4
Consequently, “[t]he district court need not al-
low any discovery . . . unless the ‘plaintiff has
supported his claim with sufficient precision
and factual specificity to raise a genuine issue
as to the illegality of defendant’s conduct at
5
Reyes v. Sazan, 168 F.3d 158, 161 (5th Cir.
3 1999) (quoting Schultea v. Wood, 47 F.3d 1427,
(...continued)
ings). 1434 (5th Cir. 1995) (en banc)); see also Vander
Zee v. Reno, 73 F.3d 1365, 1368 (5th Cir. 1996)
4
See Mitchell v. Forsyth, 472 U.S. 511, 525-26 (“Even limited discovery on the issue of qualified
(1985); see also id. at 526 (stating that “even such immunity ‘must not proceed until the district court
pretrial matters as discovery are to be avoided if first finds that the plaintiff’s pleadings assert facts
possible, as ‘[i]nquiries of this kind can be pecu- which, if true, would overcome the defense of
liarly disruptive of effective government’”) (quot- qualified immunity.’”) (citing Wicks v. Miss. State
ing Harlow v. Fitzgerald, 458 U.S. 800, 817 Employment Serv., 41 F.3d 991, 994 & n.10 (5th
(1982)). Cir. 1995)).
5