The opinion
Case: 22-50099 Document: 00516698034 Page: 1 Date Filed: 04/03/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 22-50099
FILED
April 3, 2023
Summary Calendar
Lyle W. Cayce
Clerk
Dustin Wayne Nall,
Plaintiff—Appellant,
versus
Dr. Benjamin Yee; Katherine Rediske; Rebecca McDow;
Valencia Pollard-Fortson; Step 2 Medical Grievance
Program Office of Professional Standards Division,
Defendants—Appellees.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:21-CV-15
Before Jones, Haynes, and Oldham, Circuit Judges.
Per Curiam:*
Dustin Nall, a Texas prisoner, 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
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 22-50099 Document: 00516698034 Page: 2 Date Filed: 04/03/2023
No. 22-50099
for summary judgment. On appeal, Nall insists that defendants Dr. Benjamin
Yee, Katherine Rediske, Rebecca McDow, and Valencia Pollard-Fortson
acted with deliberate indifference to his serious medical needs and are not
entitled to qualified immunity because they did not take certain actions with
respect to his medical care. 1 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).
First, Nall alleges that Dr. Yee “intentionally treated him incorrectly”
and “ignored his complaints” because Dr. Yee prescribed medications he
knew caused adverse side effects to Nall instead of Nall’s preferred
medications. Disagreement with medical treatment or decisions whether to
provide additional treatment does not constitute deliberate indifference.
Gobert v. Caldwell, 463 F.3d 339, 345–46 (5th Cir. 2006). Medical records
reveal that Dr. Yee did not prescribe Nall’s desired medications because of
those medications’ high risk of abuse and misuse, not because of his
indifference to Nall. And Nall presented no evidence showing Dr. Yee
otherwise ignored his requests or intentionally treated him incorrectly.
Nall’s medical records, in fact, show that Dr. Yee continuously provided
mental health treatment to Nall for several years.
Nall also alleges Rediske was deliberately indifferent to his medical
needs because he continued to respond to sick calls and embarrassed Nall in
front of correctional officers. Nall fails to create a material fact issue because
caring for Nall’s medical needs, apparently against Nall’s wishes, cannot also
be deliberate indifference. Furthermore, embarrassment, even if true, is not
deliberate indifference.
1
On appeal, Nall does not challenge summary judgment for the Step 2 Medical
Grievance Program Office of Professional Standards Division.
2
Case: 22-50099 Document: 00516698034 Page: 3 Date Filed: 04/03/2023
No. 22-50099
Because Nall fails to allege Dr. Yee and Rediske violated a clearly
established constitutional right, there is no alleged violation to attribute to
McDow, the alleged supervisor, or Pollard-Fortson, who reviews prisoner
grievances.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
3