United States Court of Appeals 

for the Fifth Circuit ____________ 

No. 22-20189 

Summary Calendar 

____________ 

Juan Daniel Cano, 

Plaintiff—Appellant, 

versus

Karen Faust; Mark Varner; Jaime Williams; Gail L. 

Thompson; James Jones; Charles James; Officer Perkins, 

Defendants—Appellees.

______________________________ 

Appeal from the United States District Court 

for the Southern District of Texas 

USDC No. 4:19-CV-317 

______________________________ 

Before Smith, Southwick, and Douglas, Circuit Judges.

Per Curiam:*

Juan Daniel Cano, Texas prisoner # 1705654, appeals the dismissal of 

his 42 U.S.C. § 1983 action against two officials employed by the Texas 

Department of Criminal Justice (TDCJ) and three officials employed by the 

University of Texas Medical Branch (UTMB). Cano’s complaint stems 

from his allegation that UTMB physician’s assistant Karen Faust assaulted 

_____________________ 

*

 This opinion is not designated for publication. See 5th Cir. R. 47.5. 

United States Court of Appeals 

Fifth Circuit 

FILED 

March 14, 2023 

Lyle W. Cayce 

Clerk 

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him in the course of performing a rectal exam after he complained of rectal 

bleeding. Cano’s complaint alleged claims of retaliation, deliberate 

indifference, failure to supervise or train, use of excessive force, and failure 

to intervene. He now challenges the Federal Rule of Civil Procedure Rule 

12(b)(6) dismissal of his claims against TDCJ employees James Jones and 

Charles James, the Rule 12(b)(6) dismissal of his retaliation claim against 

Faust, and the district court’s order granting summary judgment in favor of 

UTMB employees Faust, Mark Varner, and Jaime Williams on qualified 

immunity grounds. Cano does not challenge the dismissal of his claims 

against UTMB employee Gail L. Thompson. 

We review a dismissal for failure to state a claim pursuant to Rule 

12(b)(6) de novo. Morin v. Caire, 77 F.3d 116, 120 (5th Cir. 1996). Under 

that rule, a complaint must be dismissed if it fails to “set forth enough facts 

to state a claim to relief that is plausible on its face.” Childers v. Iglesias, 848 

F.3d 412, 413 (5th Cir. 2017) (internal quotation marks and citation omitted). 

The district court correctly found that Cano failed to allege more than 

a de minimis retaliatory act that would be sufficient to support a retaliation 

claim against James. See Morris v. Powell, 449 F.3d 682, 684-86 (5th Cir. 

2006); Brunson v. Nichols, 875 F.3d 275, 277 (5th Cir. 2017). We also agree 

that he failed to plead facts showing it was plausible that Faust had the 

requisite intent to retaliate against him or that the alleged adverse act would 

not have occurred but for Faust’s retaliatory intent. See Ashcroft v. Iqbal, 556 

U.S. 662, 678 (2009); Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995); 

McDonald v. Steward, 132 F.3d 225, 231 (5th Cir. 1998). Accordingly, the 

court did not err in dismissing Cano’s retaliation claims for failure to state a 

claim. 

Nor did it err in dismissing Cano’s claims that Jones and James were 

deliberately indifferent to his serious medical needs by allegedly failing to 

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provide him with medical providers capable of providing proper treatment. 

Cano did not allege that Jones or James played any role in hiring medical 

providers or in determining who would treat him, and Cano’s allegations 

reflect a mere disagreement with the medical treatment he received, which 

cannot form the basis of a deliberate indifference claim. See Gobert v. 

Caldwell, 463 F.3d 339, 346 (5th Cir. 2006). His claim that James and Jones 

failed to supervise or train their subordinates was likewise properly dismissed 

because Cano failed to plead facts suggesting any connection between the 

alleged failure to supervise or train and any violation of his rights. See 

Goodman v. Harris Cnty., 571 F.3d 388, 395 (5th Cir. 2009). 

With respect to the district court’s granting of the UTMB 

defendants’ summary judgment motion, our review is de novo. See Hyatt v. 

Thomas, 843 F.3d 172, 176 (5th Cir. 2016). Summary judgment is appropriate 

“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). The doctrine of qualified immunity “alters the usual summary 

judgment burden of proof” in that the plaintiff has the burden of showing 

that a defendant is not entitled to qualified immunity. Valderas v. City of 

Lubbock, 937 F.3d 384, 389 (5th Cir. 2019). In determining whether qualified 

immunity applies, we review: (1) whether the plaintiff has alleged a violation 

of a constitutional right; and (2) if so, whether the right was clearly 

established at the time of the violation. Brumfield v. Hollins, 551 F.3d 322, 

326 (5th Cir. 2008). 

Cano’s complaint alleged that Faust used excessive force by inserting 

an unknown object into his rectum three times during a rectal exam. The 

summary judgment evidence submitted by the UTMB defendants reflects 

that Faust performed a single-digit rectal exam on Cano because he 

complained of rectal bleeding; the evidence does not support Cano’s 

assertion that Faust inserted any other item into his rectum. See Carnaby v. 

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City of Houston, 636 F.3d 183, 187 (5th Cir. 2011). Moreover, Cano has not 

pointed to any summary judgment evidence supporting his assertion that the 

rectal exam was clearly excessive or that the excessiveness was clearly 

unreasonable. See Tarver v. City of Edna, 410 F.3d 745, 751 (5th Cir. 2005). 

Cano has also failed to show that he had a “clearly established” right to 

refuse the rectal exam at the time of the alleged violation. Brumfield, 551 F.3d 

at 326; see Sama v. Hannigan, 669 F.3d 585, 593 (5th Cir. 2012). The district 

court therefore did not err in granting summary judgment for Faust with 

respect to Cano’s use of excessive force claim. We will not consider Cano’s 

claim, raised for the first time on appeal, that Faust’s failure to obtain his 

consent for the exam violated his Fourteenth Amendment due process right. 

See Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999). 

We also ascertain no error in the district court’s grant of summary 

judgment on Cano’s failure to intervene claim against Varner, a nurse who 

was present during the rectal exam. Because Cano’s rights were not violated 

during the rectal exam, Cano has failed to make the required showing that 

Varner failed to prevent a violation of his rights. See Whitley v. Hanna, 726 

F.3d 631, 646 (5th Cir. 2013). 

Cano has also not shown that the court erred in granting summary 

judgment in favor of the UTMB defendants on his deliberate indifference 

claim. The summary judgment evidence belies Cano’s assertions that he was 

not treated for his thyroid and digestive issues, and his allegations amount to 

a disagreement with treatment, which is not actionable under the Eighth 

Amendment. See Gobert, 463 F.3d at 346. Finally, the court correctly granted 

summary judgment in Williams’s favor with respect to Cano’s claims of 

failure to train or supervise, as he did not make the required showing of an 

underlying violation of his rights that was caused by the alleged failure to train 

or supervise. See Goodman, 571 F.3d at 395. 

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Accordingly, the district court’s judgment is AFFIRMED. 

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