IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-40579

Summary Calendar

CHESTER LOWE HUFF,

Plaintiff-Appellant

v.

MARIA MANFREDI; LANELLE D. WHITE; DR. NIMA; DR. TIRGAN;

ESCHAVAREZ ERK; ET AL;

Defendants-Appellees

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

CHESTER LOWE HUFF,

Plaintiff-Appellant

v.

RICK THALER, ET AL, 

Defendant-Appellee

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:12-CV-43

USDC No. 2:12-CV-67

United States Court of Appeals

Fifth Circuit

F I L E D

December 27, 2012

Lyle W. Cayce

Clerk

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No. 12-40579

Before SMITH, PRADO, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Chester Lowe Huff, Texas prisoner # 582855, filed a 42 U.S.C. § 1983

complaint arguing that the Texas Department of Criminal Justice (TDCJ-ID),

the University of Texas Medical Branch (UTMB), and 34 individual employees

of either the TDCJ or UTMB were deliberately indifferent to his serious medical

needs. Specifically, he argued that the defendants delayed and denied him

treatment for an eye infection that caused him constant pain, a swollen cheek,

and blurry vision. He also asserted that the defendants retaliated against him

for filing grievances. Huff consented to proceed before a magistrate judge who

dismissed his complaint for failure to state a claim and as frivolous pursuant to

28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b)(1).

Because the magistrate judge found that Huff’s complaint was both

frivolous and failed to state a claim under both § 1915(e) and § 1915A, our 

review is de novo. See Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005)

(reviewing dismissal of the complaint de novo where both standards of review

were applicable). Other than naming Rick Thaler, Eileen Kennedy, Cheryl

Lawson, and Ernest Guterrez as defendants in his brief, Huff does not allege any

facts supporting claims against these defendants. He also does not challenge the

magistrate judge’s decision that the Eleventh Amendment barred his claims

against the TDCJ-ID, the UTMB, and the defendants in their official capacities. 

Further, Huff does not challenge the magistrate judge’s order transferring his

claims against Doctor Nguyen, Dr. Nima, Doctor Tirgan, and Dr. Balel Baker

to the Southern District of Texas, Galveston Division. Accordingly, Huff has

abandoned his claims against the above defendants before this court. See Yohey

 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.

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v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); Brinkmann v. Dallas County

Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). 

Huff contends that the magistrate judge was biased and misconstrued his

Spears hearing testimony. However, a review of the recording of the Spears 1

hearing does not support Huff’s contention that the magistrate judge

misconstrued his testimony or spoke to him “in a hate tone a voice.” Huff’s bias

argument really appears to be based on the magistrate judge’s adverse rulings

against him; this evidence alone is not sufficient to establish bias. See Liteky v.

United States, 510 U.S. 540, 555 (1994). 

Prison officials violate the Eighth Amendment’s prohibition against cruel

and unusual punishment when they demonstrate deliberate indifference to a

prisoner’s serious medical needs, constituting an “unnecessary and wanton

infliction of pain.” See Estelle v. Gamble, 429 U.S. 97, 104–05 (1976) (internal

quotations and citation omitted). A prison official acts with deliberate

indifference if he “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.” Farmer v. Brennan, 511 U.S. 825, 837 (1994); see Reeves v. Collins,

27 F.3d 174, 176–77 (5th Cir. 1994) (applying Farmer to medical care claim). In

the case of a claim for denial of medical care, “the facts underlying a claim of

deliberate indifference must clearly evince the medical need in question and the

alleged official dereliction.” Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir.

1985) (internal quotations and citation omitted). 

As to Norris Jackson and William Burgin, Huff’s assertion that these

defendants denied him medical care in violation of the Eighth Amendment by

ignoring his grievances complaining that he was being denied medical care for

his infected eye is unavailing. The record reflects that Huff’s grievances were

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

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investigated and responded to by Jackson and Burgin. To the extent that Huff

challenges the denial of his grievances, he has failed to allege a constitutional

violation. See Geiger, 404 F.3d at 374. Huff does not challenge the magistrate

judge’s determination that the implementation and execution of Administrative

Directive 06.62 is not unconstitutional. Accordingly, he has abandoned any

constitutional challenge to the policy. See Brinkmann, 813 F.2d at 748. Further,

Huff’s condition was not classified as a medical emergency and he has not shown

that he suffered substantial harm in connection with any delay in receiving

medical treatment as a result of the application of Administrative Directive

06.62. See Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993). Accordingly,

the magistrate judge did not err in dismissing Huff’s claims against these

defendants. 

As the magistrate judge noted, Huff seemingly sued every medical

personnel and security officer he encountered between April 2011 through

November 2011. Huff, however, has made no showing of deliberate indifference

on the part of the defendants and thus has not shown that the magistrate judge

erred in determining that the defendants did not violate his constitutional

rights. The record indicates that Huff received ongoing treatment for his eye

infection. At most, Huff alleges inconsequential delays in medical treatment,

unsuccessful medical treatment, and acts of negligence or medical malpractice. 

Further, his allegation that the nurses and doctors at the McConnell Unit should

have immediately referred him to Hospital Galveston does not amount to

deliberate indifference. See Estelle, 429 U.S. at 107; see also Norton v.

Dimazana, 122 F.3d 286, 292 (5th Cir. 1997). Huff has failed to show that the

defendants ignored his complaints, refused treatment, “or engaged in any

similar conduct that would clearly evince a wanton disregard for any serious

medical needs.” See Johnson, 759 F.2d at 1238. Accordingly, the magistrate

judge did not err in dismissing his claims against the defendants.

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Huff contends that the defendants denied him adequate medical care for

his infected eye in retaliation for filing grievances. Filing a grievance is a

constitutionally protected activity, and a prison official may not retaliate against

a prisoner for engaging in a protected activity. See Woods v. Smith, 60 F.3d

1161, 1164 (5th Cir. 1995). To state a retaliation claim, a prisoner must, inter

alia, “produce direct evidence of motivation” or “allege a chronology of events

from which retaliation may plausibly be inferred.” Id. at 1166 (internal

quotation marks and citations omitted). Huff’s conclusory allegations that he

was denied medical care in retaliation is not supported by his own pleadings

which reflect that he received ongoing medical care for his infected eye

notwithstanding his complaints and grievances. Thus, the magistrate judge did

not err in denying Huff’s claim as frivolous. 

Accordingly, the judgment of the magistrate judge is affirmed. Huff’s

motion to file a supplemental brief is granted, but his motion for appointment

of counsel is denied. The magistrate judge’s dismissal of his complaint counts

as a strike for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103

F.3d 383, 385–87 (5th Cir. 1996). Huff is cautioned that if he accumulates three

strikes under § 1915(g), he may not proceed in forma pauperis in any civil action

or appeal filed while he is incarcerated or detained in any facility unless he is

under imminent danger of serious physical injury. See § 1915(g).

AFFIRMED;MOTION TO FILE SUPPLEMENTAL BRIEFISGRANTED;

MOTION FOR APPOINTMENT OF COUNSEL IS DENIED; SANCTION

WARNING ISSUED.

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