* 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that this opinion should not be published and is not precedent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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 00-20980

Summary Calendar

 

WENEN JOHNSON,

Plaintiff-Appellant,

versus

GARY L. JOHNSON, DIRECTOR, 

TEXAS DEPARTMENT OF CRIMINAL

JUSTICE, INSTITUTIONAL DIVISION;

J.N. BARRATT; V.M. PORTER; EATON,

Nurse; WHITE, Nurse,

Defendants-Appellees.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. H-98-CV-3779

--------------------

June 19, 2001

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Wenen Johnson, Texas state prisoner # 578302, argues that

the district court erred in dismissing his 42 U.S.C. § 1983

complaint for failure to state a claim upon which relief can be

granted in light of his allegations that he was denied adequate

medical care by the prison medical staff and administrators. 

Johnson argues that his hand was permanently injured as a result
No. 00-20980

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** Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).

of the medical staff’s failure to provide him with adequate

medical treatment after he underwent surgery on his hand for

carpal tunnel syndrome. He further argues that the district

court erred in making credibility findings based on evidence

presented at the Spears** hearing.

Review of the district court’s judgment dismissing an action

for failure to state a claim is de novo. See Moore v. Carwell,

168 F.3d 234, 236 (5th Cir. 1999). All of the plaintiff’s

factual allegations are accepted as true, and a dismissal will be

upheld only if it “appears that no relief could be granted under

any set of facts that could be proven consistent with the

allegations.” Id. 

Prison officials violate the constitutional proscription

against cruel and unusual punishment when they demonstrate

deliberate indifference to a prisoner’s serious medical needs,

which reflects an unnecessary and wanton infliction of pain. 

Wilson v. Seiter, 501 U.S. 294, 297 (1991). A prisoner’s mere

disagreement with the medical treatment given does not rise to

the level of a constitutional violation. See Varnado v. Lynaugh,

920 F.2d 320, 321 (5th Cir. 1991).

Johnson has not shown that the district court erred in

dismissing his complaint for failure to state a claim upon which

relief may be granted. Johnson was allowed to develop his

allegations in responses to interrogatories and by testifying at

the Spears hearing. The medical records, which were admitted

into evidence as business records, support Johnson’s factual
No. 00-20980

-3-

allegations concerning his pain and suffering and the objective

symptoms that he was experiencing after his surgery. The records

confirm Johnson’s allegation that his left hand became swollen

after he underwent surgery. 

However, Johnson’s hospital medical records, which were not

prepared by the defendant prison medical personnel, also show

that objective testing established that there was no infection in

Johnson’s hand following his surgery. Although he was being

treated at the hospital, the records reflect that Johnson

continued to experience symptoms of swelling, tremor, and

numbness, symptoms which the hospital physician attributed to

probable Reflex Sympathetic Disorder, a potential complication

following surgery for carpal tunnel syndrome. Johnson assertion

that his problems were caused by an infection was merely his 

uneducated and erroneous opinion.

Because there was undisputed objective medical evidence that

his hand was not infected, Johnson’s conclusional allegation,

that he developed an infection as a result of improper treatment

by the prison medical staff, failed to state a claim that the

defendants acted with deliberate indifference to Johnson’s

medical condition. 

Further, Johnson has not disputed that the medical records

reflect that he received continual medical treatment to correct

the problems developing after his surgery. Johnson’s mere

disagreement with the type and adequacy of the treatment

provided, even if the treatment given involved some degree of

negligence or medical malpractice, does not state a
No. 00-20980

-4-

constitutional claim based on deliberate indifference. Varnado,

920 F.2d at 321. The district court did not err in dismissing

the complaint for failure to state a claim upon which relief can

be granted.

By failing to brief his claims made in the district court

regarding retaliation, the denial of his grievances, and other

claims of deliberate indifference to his medical needs unrelated

to the post-surgical treatment of his hand, Johnson has abandoned

those claims. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th

Cir. 1993).

Johnson’s motion for appointment of counsel is DENIED.

AFFIRMED.