### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

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 U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D Decem ber 2 7, 2 012 Lyle W . Cayce Clerk Case: 12-40579 Document: 00512095934 Page: 1 Date Filed: 12/27/2012No. 12-40579

Before SMITH, PRADO, and HIGGINSON, Circuit Judges. PER CURIAM: * Chester Lowe Huff, Texas prisoner # 582855, filed a 4 2 U.S.C. § 1983 complaint arguing that the Texas Depart m e n t o f 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 argu e d th a t 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 f riv o l o u s 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 d e n ovo where both standards of review

were appli c ab l e)

. 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 de c i s i o n that the Eleventh Amendment barred his claims against the TDCJ-ID, the UTMB, and the defendants in their official capacities. F u rther, Huff does not challenge the magistrate judge’s order transferring his claims against Doct o r Nguyen, Dr. Nima, Doctor Tirgan, and Dr. Balel Baker to the Southern District of Texas, Galveston Division. Accordingly, H u f f h as abandoned his claims against the above defendants before this court. See Yohey

Pur sua nt to 5 T H C IR

. R. 47.5 , the cour t hasd ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. 2 Case: 12-40579 Document: 00512095934 Page: 2 Date Filed: 12/27/2012No. 12-40579

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. 198 7). 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 con t e n tion 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 demo nstrate deliberate indifference to a prisoner’s s e rious medical needs, constituting an “unnecessary and wanton inflicti o n o f pain.” See Estelle v. Gamble , 429 U.S. 97, 104–05 (1976) (internal quotations and citation omitted). A p ri s o n 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, “th e facts underlying a claim of deliberate indifference must clearly evince the medical need in question and the alleged official derelict i o n . ” J o hnson v. Treen , 759 F.2d 1236, 1238 (5th Cir. 1985) (internal quotations and citation omitted). As to Norris Jackson and William Burgin, Huff’s as s ertion that these defendants denied him medical care in violation o f th e Eighth Amendment by ignoring his grievances complaining that he was being denied medical care for his infected eye is unavailing. The record ref l ects that Huff’s grievances were

Spea rs v. M

cCotter, 766F. 2d 179 (5t h 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 a llege 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 connec t i o n with any delay in receiving medical treatment as a result of the application of A dministrative Directive 06.62. See Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993). Accordingly, th e magistrate judge did not err in dismissing Huff’s claims again s t th e s e defendants. As the magistrate judge noted, H u f f 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 c o n s t it utional rights. T h e r e c o r d indicates that Huff received ongoing treatment for his eye infection. At most, Huff alleges inconsequent i a l 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 s hould have immediately referred him to Hospital Galvest o n does not amount to deliberate indifferen c e . See Estelle , 429 U.S. at 107; see also Norton v. Dimazana , 122 F.3d 286, 292 (5th Cir. 199 7). Huff has failed to show that the defendants ignored his complaints, refused treatment , “ o r engaged in any si m il a r conduct that would clearly evince a wanton disregard for any serious medical needs.” See Johnson , 759 F.2d at 12 3 8

. 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 infecte d e y e in retaliation for filing grievances. Filing a grievance is a constitutionally protected activity, an d a p ri son official may not retaliate against

a prisoner for engaging in a protected activity. Se e W o o ds v. Smith , 60 F.3d 1161, 1164 (5th Cir. 1995). To state a retaliation claim, a prisoner must, inter

a l i a , “produce direct evidence of motivation” or “allege a chronology of eve n t s from which retaliation may plausibly be inferred.” Id. at 11 6 6 (i n t e rnal quotation marks and ci t a t ions omitted). Huff’s conclusory allegations that he

was denied medical care in retaliation is not support e d b y his own pleadings which reflect that he rec e ived 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 aff i r m e d

. Huff’s motion to file a supplemental brief is granted, but his motion for appointment of c o u n s e l 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 inc a r c e r a t ed or detained in any facility unless he is under imminent danger of serious physical injury. See§ 1915(g). AF FI RM E D ; M O TI O N T O FI L E S UP PL E M E NT AL BRI E F I S GRANT E D ; MOTION FOR APPOINTMENT OF COUNSEL IS D E N IED; SANCTION WARNING ISSUED.

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