finding no deliberate indifference for delay in providing dentures where the inmate did not lose weight for three years after having his teeth pulled
How later courts described this case
- finding no deliberate indifference for delay in providing dentures where the inmate did not lose weight for three years after having his teeth pulled
- “[Plaintiff] is not entitled to attorneys’ fees as a pro se litigant.”
Written by the judges who cited it.
The opinion
Case: 11-10615 Document: 00512153360 Page: 1 Date Filed: 02/22/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 22, 2013
No. 11-10615
Summary Calendar Lyle W. Cayce
Clerk
DANNY LEE PERKINS,
Plaintiff-Appellant
v.
TEXAS DEPARTMENT OF CRIMINAL JUSTICE - CORRECTIONAL
INSTITUTIONAL DIVISION; UNIVERSITY OF TEXAS MANAGED HEALTH
CARE; TEXAS TECH UNIVERSITY (CORRECTIONAL) MANAGED HEALTH
CARE; TEXAS DEPARTMENT OF CRIMINAL JUSTICE MEDICAL
SERVICES DIRECTOR L. LINTHICUM; DDS GEORGE BLAKE; DDS FR
JASON BROWNING; DDS WILLIAM WALTON; FNP MSN MPH AHIA
SHABAAZ; DENTAL UTILIZATION QUALITY REVIEW COMMITTEE; DR.
THERESA WHITT; FNP DEBREH CALDWELL; JUDGE BROOKS HAGLER;
NONA CARTER, Clerk of the Court, Clerk of 259th; LACEY HANSEN, Clerk,
259th; JOHN DOE, Policy Maker; DR. JEFF DOE; BOB PREWIT, Vice
President of Medical; ASSISTANT WARDEN CARY COOK; WARDEN ROBERT
EASON,
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:09-CV-94
Case: 11-10615 Document: 00512153360 Page: 2 Date Filed: 02/22/2013
No. 11-10615
Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
Danny Lee Perkins, Texas prisoner # 1107455, appeals the dismissal as
frivolous of his 42 U.S.C. § 1983 complaint. We review the dismissal of his
complaint for abuse of discretion. See Brewster v. Dretke, 587 F.3d 764, 767 (5th
Cir. 2009).
Asserting that the defendants delayed for six years to provide him with
dentures after his teeth were pulled, Perkins argues that the defendants were
deliberately indifferent to his serious medical needs. “Deliberate indifference is
an extremely high standard to meet.” Gobert v. Caldwell, 463 F.3d 339, 346 (5th
Cir. 2006) (internal quotation marks and footnote omitted). To prevail on such
a claim, the plaintiff must establish that a defendant denied him treatment,
purposefully gave him improper treatment, ignored his medical complaints, “or
engaged in any similar conduct that would clearly evince a wanton disregard for
any serious medical needs.” Id. (internal quotations marks and footnote
omitted). The existence of continuous or regular medical care generally
precludes a finding of deliberate indifference. See Banuelos v. McFarland, 41
F.3d 232, 235 (5th Cir. 1995). A delay in medical care violates the Eighth
Amendment only if it is due to deliberate indifference and results in substantial
harm. Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993).
The undisputed facts are that Perkins did not lose weight for three years
after having his teeth pulled; Perkins’s medical records reflect that he
complained of the weight loss; a dentist suspected that Perkins lost weight to get
dentures; and Perkins was seen and treated first with a blended diet and then
with a hypercaloric blended diet. He has since obtained dentures. Essentially,
Perkins has stated a disagreement with the treatment he received and has
*
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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Case: 11-10615 Document: 00512153360 Page: 3 Date Filed: 02/22/2013
No. 11-10615
raised a claim more akin to medical malpractice or negligence. See Gobert, 463
F.3d at 346. As the magistrate judge found, Perkins’s allegations and the
medical records do not show that any defendant was deliberately indifferent to
his serious medical needs.
Perkins also argues that he was erroneously denied attorneys’ fees,
characterizing himself as the prevailing party since he obtained the dentures he
sought. Other considerations aside, Perkins is not entitled to attorneys’ fees as
a pro se litigant. See Kay v. Ehrler, 499 U.S. 432, 435-37 (1991).
Perkins argues that his claims of retaliation and a violation of his equal
protection rights were erroneously dismissed. Both of these claims were entirely
conclusory, and therefore there was no abuse of discretion in their dismissal. See
Jones v. Greninger, 188 F.3d 322, 325 (5th Cir. 1999); Augustine v. Doe, 740 F.2d
322, 325 n.6 (5th Cir. 1984).
In the district court, Perkins raised claims that certain of the defendants
violated RICO and violated his due process rights. As Perkins has not briefed
these claims, they are considered waived. See Sama v. Hannigan, 669 F.3d 585,
589 n.5 (5th Cir. 2012). Perkins has also waived any argument that the
magistrate judge erroneously determined that the defendants enjoyed Eleventh
Amendment immunity to the extent that they were state agencies or were acting
in an official capacity. See id.
Last, Perkins argues that he was erroneously denied class certification.
Perkins’s notice of appeal was filed well more than 14 days after the denial of his
motion for certification. Therefore, his appeal of the denial of his motion for
class certification is dismissed for lack of jurisdiction as untimely filed. See
McNamara v. Felderhof, 410 F.3d 277, 279 (5th Cir. 2005).
AFFIRMED IN PART; DISMISSED IN PART FOR LACK OF
JURISDICTION.
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