The opinion
Case: 16-30033 Document: 00513867458 Page: 1 Date Filed: 02/08/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-30033 FILED
Summary Calendar February 8, 2017
Lyle W. Cayce
Clerk
JOHN POULLARD,
Plaintiff-Appellant
v.
PAUL TOCE,
Defendant-Appellee
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:15-CV-94
Before STEWART, Chief Judge, and CLEMENT and SOUTHWICK, Circuit
Judges.
PER CURIAM: *
John Poullard, Louisiana prisoner # 98999, filed a pro se 42 U.S.C.
§ 1983 suit against Paul Toce, a physician at Angola. Poullard alleged that
Toce violated the Eighth Amendment because he was deliberately indifferent
to Poullard’s serious medical needs in prescribing Tegretol for pain associated
with Bell’s Palsy without monitoring Poullard for liver or bone marrow
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 16-30033
problems. The district court granted summary judgment in favor of Toce based
on his qualified immunity.
We review a grant of summary judgment de novo and consider it proper
when a movant shows there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law. Cousin v. Small, 325
F.3d 627, 637 (5th Cir. 2003); FED. R. CIV. P. 56(a). We construe all facts and
inferences in the light most favorable to the nonmoving party. Dillon v. Rogers,
596 F.3d 260, 266 (5th Cir. 2010). However, Poullard has the burden of
rebutting Toce’s qualified immunity defense. See Brown v. Callahan, 623 F.3d
249, 253 (5th Cir. 2010). To do so, he must show that Toce violated “clearly
established statutory or constitutional rights of which a reasonable person
would have known.” Brown v. Miller, 519 F.3d 231, 236 (5th Cir. 2008)
(internal quotation marks and citation omitted).
The Eighth Amendment proscribes “deliberate indifference to serious
medical needs of prisoners.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). To
substantiate his claim, Poullard had to show that Toce “refused to treat him,
ignored his complaints, intentionally treated him incorrectly, or engaged in
any similar conduct that would clearly evince a wanton disregard for any
serious medical needs.” Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006)
(internal quotation marks and citation omitted). Toce saw Poullard on five
occasions, referred him to other specialists, and adjusted Poullard’s medication
for his pain. Moreover, Poullard has not pointed to evidence that he actually
suffered liver or bone marrow damage.
At most, Poullard has shown that he disagreed with the medical
treatment provided by Toce, which does not rise to a constitutional violation.
See Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993); Varnado v.
Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991). Thus, as a matter of law, Toce was
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No. 16-30033
not deliberately indifferent in his treatment of Poullard’s pain. See Brauner v.
Coody, 793 F. 3d 493, 499 (5th Cir. 2015); Norton v. Dimazana, 122 F.3d 286,
292 (5th Cir. 1997).
AFFIRMED.
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