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. 09-40383

Summary Calendar

GEORGE HARRY DAVIS, JR.,

Plaintiff - Appellant

v.

UNITED STATES OF AMERICA; RUDY CHILDRESS, Warden;

UNIDENTIFIED HOLLIFIELD, Food Service Supervisor; UNIVERSITY OF

TEXAS MEDICAL BRANCH; J WELLS, Medical Assistant Administrator;

ANICETO DOMINGUEZ, M.D.; UP DUPREE, Nurse; UP GILDCREST,

Nurse,

Defendants - Appellants

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 1:06-CV-85

Before GARZA, CLEMENT, and OWEN, Circuit Judges.

PER CURIAM:*

George Harry Davis, Jr., a federal prisoner proceeding pro se and in forma

pauperis, appeals the dismissal of his Bivens complaint. For the reasons stated

below, we affirm in part, vacate in part, and remand for further proceedings.

United States Court of Appeals

Fifth Circuit

F I L E D

December 22, 2009

Charles R. Fulbruge III

Clerk
No. 09-40383

Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978); see also Cay v. Estelle, 789 F.2d 318, 1

323 n.4 (5th Cir. 1986). Because the Martinez report was filed prior to Davis’s amended

complaint, it responded only to the allegations contained in the original complaint.

2

FACTS AND PROCEEDINGS

Davis is a federal prisoner incarcerated in Beaumont, Texas. On May 25,

2005, while working in the prison bakery, Davis suffered a laceration on his left

fifth finger. The incident resulted in a ruptured flexor tendon. The day of his

injury, Davis was transported to a local hospital where his injury was sutured.

Davis eventually underwent surgery on June 20, 2005 at the University of Texas

Medical Branch hospital (UTMB). He was provided pain medication and a splint

to stabilize the injury. On several occasions in July and December 2005, Davis

underwent physical therapy with a prison therapist. 

After exhausting administrative remedies, Davis filed a complaint on

February 15, 2006 pursuant to Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971). He alleged that the defendants’

conduct amounted to deliberate indifference to his serious medical needs in

violation of the Eighth Amendment. He argued that delays in providing surgery

and therapy resulted in increased pain and potentially permanent damage to his

left hand. On September 13, 2006, pursuant to a court order, the United States

Attorney’s Office filed on behalf of the defendants a Martinez report responding 1

to the allegations in Davis’s complaint. On October 12, 2006, Davis filed, and on

August 23, 2007, the district court granted, Davis’s motion to amend his

complaint. His amended complaint added a claim against Associate Warden Ken

Everhart and Food-Service Cook Supervisor Richard Perry, alleging that they

forced him to work beyond his documented medical restrictions. To his amended

complaint, Davis attached exhibits evincing his pursuit of administrative

remedies for the forced work claim. 
No. 09-40383

 Davis also devotes a portion of his brief to whether defendants Dominguez, Dupree, 2

and Gildcrest are entitled to a qualified immunity defense. Qualified immunity was not

asserted by any defendant, nor was it a basis for the district court’s judgment. This argument

is therefore misplaced. 

3

The district court construed the Martinez report as a motion for summary

judgment, which it granted, dismissing the entirety of Davis’s case with

prejudice. First, it dismissed the claims against the United States and UTMB

on sovereign immunity grounds. Second, it dismissed Warden Rudy Childress

and Medical Assistant Administrator J. Wells because they lacked personal

involvement in Davis’s medical treatment. Third, the court concluded that the

conduct Davis complained of did not amount to deliberate indifference under the

Eighth Amendment. Finally, the court ruled that Davis had not exhausted

administrative remedies on his forced work claim and dismissed the claim on

that basis. Davis timely appealed.

STANDARD OF REVIEW

We review the district court’s grant of summary judgment de novo.

Hernandez v. Velasquez, 522 F.3d 556, 560 (5th Cir. 2008). Summary judgment

is appropriate if the submissions show that “there is no genuine issue as to any

material fact and that the movant is entitled to judgment as a matter of law.”

FED R. CIV. P. 56(c). When deciding whether a fact issue exists, we review the

evidence and the inferences drawn from it in the light most favorable to the

nonmoving party. Hernandez, 522 F.3d at 560. Even if this court disagrees with

the reasons given by the district court, it may affirm a grant of summary

judgment on any grounds supported by the record and presented to the court

below. Id. 

DISCUSSION

Davis makes three main arguments on appeal. First, he argues that the 2

district court erred in finding no Eighth Amendment violation in the defendants’
No. 09-40383

4

conduct. Second, he argues that the dismissal of Childress and Wells for lack of

personal involvement was erroneous. Finally, Davis contends that, contrary to

the district court’s conclusion, he did not fail to exhaust his administrative

remedies for the forced work claim presented in his amended complaint. Davis

does not challenge the district court’s decision to dismiss the United States and

UTMB on sovereign immunity grounds. 

A. Deliberate Indifference

The district court concluded that Davis received adequate medical care

and, moreover, that the alleged delays in surgery and therapy were not

attributable to any named defendant. On appeal, Davis attributes his surgery

delay to UTMB’s “policies for surgery referrals” and the prison’s “security

policies” without specific allegation of wrongdoing by a named defendant.

Meanwhile, his brief contains a conclusory assertion that defendants Childress

and Wells “ignored” his scheduled therapy appointments. Even if true, that

allegation would be insufficient to satisfy the deliberate indifference standard

because it does not establish the requisite “culpable state of mind” of the

defendants. Calhoun v. Hargrove, 312 F.3d 730, 734 (5th Cir. 2002) (“To find

that an official is deliberately indifferent, it must be proven that ‘the official

knows of and disregards an excessive risk to inmate health or safety; the official

must both be aware of facts from which the inference could be drawn that a

substantial risk of serious harm exists, and he must also draw the inference.’”

(quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994))); see also Easter v. Powell,

467 F.3d 459, 463 (5th Cir. 2006) (recognizing a claim for delayed medical care,

but only where the deliberate indifference of prison officials results in

substantial harm). 

Davis’s claim is essentially that the provided treatment was inadequate

or negligent or both. Yet, as this court has held, “the decision whether to provide

additional treatment is a classic example of a matter for medical judgment,” and
No. 09-40383

5

thus not cognizable under the Eighth Amendment. Gobert v. Caldwell, 463 F.3d

339, 346 (5th Cir. 2006) (quotation omitted). “Unsuccessful medical treatment,

acts of negligence, or medical malpractice do not constitute deliberate

indifference, nor does a prisoner’s disagreement with his medical treatment,

absent exceptional circumstances.” Id. We agree with the district court that

Davis did not present a genuine issue of material fact that the defendants were

deliberately indifferent to serious medical needs with respect to his treatment.

B. Lack of Personal Involvement

Davis argues that the dismissal of Childress and Wells for lack of personal

involvement was erroneous because those defendants relied on extant hospital

and prison policies that caused delays in his treatment. An individual official

may be held liable “only for implementing a policy that is itself [ ] a repudiation

of constitutional rights and the moving force of the constitutional violation.”

Oliver v. Scott, 276 F.3d 736, 742 (5th Cir. 2002) (quotation omitted). Davis does

not identify any specific policy allegedly relied upon by Childress or Wells. For

that reason, the district court’s dismissal of those defendants for lack of personal

involvement was not improper. 

C. Forced Work Claim

Davis argues that the district court erred in dismissing sua sponte his

forced work claim due to a failure to exhaust administrative remedies. The

forced work claim is based on the alleged conduct of Associate Warden Everhart

and Food-Service Cook Supervisor Perry from January to May 2006. Davis

alleged that Perry, under direction from Everhart, forced him to continue

working in the food service bakery in violation of documented medical

restrictions which Davis had provided to Perry. Davis asserted that Perry’s and

Everhart’s conduct subjected him to extreme pain and suffering in violation of

the Eighth and Fourteenth Amendments. 
No. 09-40383

 As noted by the district court, Jones left open the possibility that a case may be 3

dismissed “for failure to state a claim, predicated on failure to exhaust, if the complaint itself

makes clear that the prisoner failed to exhaust.” Carbe, 492 F.3d at 328. The district court

dismissed the claim on this basis, reasoning that Davis initiated administrative grievances

after he filed the original complaint. A review of the record, however, shows that Davis did

pursue administrative remedies for the conduct underlying his forced work claim prior to

seeking leave to amend his complaint in October 2006. Moreover, his amended complaint

alleges that he did so and includes documentation of his grievances. The district court appears

to have ignored the filing of the amended complaint, and its conclusion that “plaintiff could

not have exhausted administrative remedies with respect to incidents that took place after the

lawsuit was filed” was therefore erroneous.

6

Davis presented this claim in an amended complaint, filed by leave of

court on August 23, 2007. The district court concluded that Davis had not

exhausted his administrative remedies and dismissed sua sponte his forced work

claim. In Jones v. Bock, the Supreme Court held “that failure to exhaust is an

affirmative defense under the [Prison Litigation Reform Act], and that inmates

are not required to specially plead or demonstrate exhaustion in their

complaints.” 549 U.S. 199, 216 (2007); see also Carbe v. Lappin, 492 F.3d 325,

328 (5th Cir. 2007) (“Any failure to exhaust must be asserted by the

defendant.”). The district court erred by sua sponte dismissing the forced work 3

claim for failure to exhaust; that dismissal must be vacated and the case

remanded for further proceedings.

CONCLUSION

The judgment of the district court is VACATED insofar as it resulted in

the dismissal of Davis’s forced work claim. The judgment is AFFIRMED in all

other respects, and the case is REMANDED for further proceedings.