The opinion
Case: 18-50848 Document: 00515196297 Page: 1 Date Filed: 11/12/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-50848 FILED
Summary Calendar November 12, 2019
Lyle W. Cayce
Clerk
HUMBERTO H. GOMEZ,
Plaintiff-Appellant
v.
HUGHES UNIT UTMB HEALTH PROVIDERS; DR. FNU BENNETT; DR.
FNU TOGO; DR. FNU NOSIOTTIS,
Defendants-Appellees
Appeals from the United States District Court
for the Western District of Texas
USDC No. 6:18-CV-19
Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Humberto Gomez, Texas prisoner # 2057999, filed this 42 U.S.C. § 1983
suit to seek redress for alleged acts of deliberate indifference to serious medical
needs. The district court dismissed his suit after granting the defendants’
motion for summary judgment. On appeal, Gomez insists that defendants
Bennett and Togo acted with deliberate indifference to his serious medical
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-50848
needs and are not entitled to qualified immunity because they did not take
certain actions with respect to his medical care.
Gomez moves for appointed counsel on appeal. Because this case is
unexceptional, the motion is DENIED. See Ulmer v. Chancellor, 691 F.2d 209,
212–13 (5th Cir. 1982).
We review the grant of a motion for summary judgment de novo. Xtreme
Lashes, LLC v. Xtended Beauty, Inc., 576 F.3d 221, 226 (5th Cir. 2009). The
district “court shall grant summary judgment if the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” FED. R. CIV. P. 56(a).
Prison officials infringe the Eighth Amendment’s proscription against
cruel and unusual punishment by exhibiting “deliberate indifference to a
prisoner’s serious medical needs, constituting an ‘unnecessary and wanton
infliction of pain.’” Easter v. Powell, 467 F.3d 459, 463 (5th Cir. 2006) (quoting
Wilson v. Seiter, 501 U.S. 294, 297 (1991)). Absent exceptional circumstances,
unsuccessful medical treatment, negligent acts, medical malpractice, or
disagreement with medical treatment or decisions whether to provide
additional treatment do not constitute deliberate indifference. Gobert v.
Caldwell, 463 F.3d 339, 345–46 (5th Cir. 2006). One seeking to overcome an
official’s invocation of qualified immunity must show, among other things, that
the official has violated a clearly established constitutional right. Harris v.
Victoria Indep. Sch. Dist., 168 F.3d 216, 223 (5th Cir. 1999).
The record shows that Gomez had medical appointments with the
defendants; one of the defendants prescribed medication for him. Additionally,
there is nothing in the record to show that the defendants exhibited “a wanton
disregard for any serious medical needs.” See Gobert, 463 F.3d at 346. The
record thus shows no error in connection with the district court’s conclusions
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No. 18-50848
that the defendants were entitled to qualified immunity and that they did not
exhibit deliberate indifference to Gomez’s serious medical needs.
AFFIRMED.
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