IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-40395

Summary Calendar

KENNETH WAYNE MENARD, SR.,

Plaintiff-Appellant

v.

CHARLES WAGNER, Brazoria County Sheriff; BENNETT, Nurse Ms. “B”; MS.

TAYLOR, County Jail Doctor,

Defendants-Appellees

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 3:09-CV-8

Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.

PER CURIAM:*

Kenneth Wayne Menard, Sr.,Texas prisoner # 724683, appeals the district

court’s grant of summary judgment in favor of the defendants, holding them

protected by qualified immunity from his civil rights suit. Menard alleged that

the defendants were deliberately indifferent to his serious medical needs in that

they did not provide adequate treatment for his injured elbow. We AFFIRM.

United States Court of Appeals

Fifth Circuit

F I L E D

December 19, 2011

Lyle W. Cayce

Clerk

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.

Case: 11-40395 Document: 00511700328 Page: 1 Date Filed: 12/19/2011
No. 11-40395

We review the grant of a motion for summary judgment de novo, applying

the same standards as the district court. Hill v. Carroll Cnty., Miss., 587 F.3d

230, 233 (5th Cir. 2009). “The 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). 

“Qualified immunity protects government officials ‘from liability for civil

damages insofar as their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would have known.’” Lytle

v. Bexar Cnty., Tex., 560 F.3d 404, 409 (5th Cir. 2009) (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)). We consider “whether, taking the facts in

the light most favorable to the plaintiff, the officer’s alleged conduct violated a

constitutional right.” Id. at 410 (citing Saucier v. Katz, 533 U.S. 194, 201

(2001)).

The record shows that the defendants did not act with indifference to

Menard’s serious medical needs. See Domino v. Texas Dep’t of Criminal Justice,

239 F.3d 752, 756 (5th Cir. 2001). Menard was seen by medical personnel and

given pain medication and palliative treatment. X-rays were ordered. See

Banuelos v. McFarland, 41 F.3d 232, 235 (5th Cir. 1995). Menard disagrees with

his treatment, but that is insufficient to establish deliberate indifference. See

Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006). Menard has not shown

that the defendants violated a constitutional right. Therefore, he fails to show

that the defendants were not entitled to qualified immunity. See Lytle, 560 F.3d

at 410. 

As Menard has not shown exceptional circumstances, we reject his request

for appointment of counsel. See Cooper v. Sheriff, Lubbock Cnty., Tex., 929 F.2d

1078, 1084 (5th Cir. 1991). His motion to supplement the record is also denied.

AFFIRMED; MOTIONS DENIED.

2

Case: 11-40395 Document: 00511700328 Page: 2 Date Filed: 12/19/2011