* Pursuant to 5 TH C IR . 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 5 TH C IR

. R. 47.5.4. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-20316

Summary Calendar

WILLIAM GARY BRADBERRY,

Plaintiff-Appellant,

versus

HOUSTON BRALY, Doctor; LAN NELSON, Doctor,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of Texas

(H-96-CV-1541)

October 27, 1999

Before POLITZ, WIENER, and DeMOSS, Circuit Judges.

POLITZ, Circuit Judge: *

William Gary Bradberry, an inmate proceeding pro se and in forma pauperis,

app eals an adverse summary judgment in his 42 U.S.C. § 1983 suit against

Drs. Houston Braly and Lan Nelson. Finding no error, we affirm.1 Bradberry also asserted claims against four other members of the Wynne Unit’s

psychiatric staff. Although the court ordered service on all defendants, only Drs. Braly and

Nelson were actually served.

2 See 5th C IR . R. 28.2.3.

3 Grant v. Cuellar, 59 F.3d 523 (5th Cir. 1995).

4 Johnson v. Treen, 759 F.2d 1236, 1237 (5th Cir. 1985) (quoting Estelle v. Gamble,

429 U.S. 97,106 (1976)).

2 Defendants are members of the medical and psychiatric staff at the Wynne

Unit of the Texas Department of Criminal Justice, Ins titutional Division. 1

Bradberry contends that Drs. Braly and Nelson acted with deliberate indifference

to his serious medical needs by witholding mental health treatment and medication

in violation of the eighth amendment’s proscription against cruel and inhuman

punishment.

At the threshold we decline defendants’ suggestion that we dism i ss this

appeal due to Bradberry’s failure to cite to relevant portions of the record in his

brief. 2 Defendants have not shown that they have been prejudiced thereby. Further,

Bradberry’s brief adequately details the claims asserted and his contentions as to

why the district court erred. 3

To establish a claim under 42 U.S.C. § 1983 based on a denial of medical

treatment, Bradbe rry must prove that “care was denied and that this denial

constituted ‘ deliberate indifference to serious medical needs.’ ” 4 Moreover, he must5 Farmer v. Brennen, 511 U.S. 825 (1994); Reeves v. Collins, 27 F.3d 174 (5th Cir.

1994).

6 Estelle v. Gam ble, 4 29 U.S. at 106, (“[A] complaint that a physician has been

negligent in

. . . treating a medical condition does not state a valid claim of medical

3 establish that the defendants w ere subjectively reckless in that they actually

perceived and disregarded a substantial ris k of serious harm by denying him

psychiatric treatment. 5 On the summary judgment record, we must conclude that

Bradberry did not sufficiently allege and adequately establish facts demonstrating

a substantial risk of serious harm resulted because of the denial of mental health

treatment and medication. Bradberry was seen by doctors and nurses in the

psychiatric unit on at least five different occasions between the time of his entrance

into the Wynne Unit and the filing of this action. There is no indication that he was

suicidal or that he otherwise posed a danger to himself or others. He was placed on

no restrictions and had no record of disciplinary problems.

Additionally, the challenged actions of Drs. Braly and Nelson do not rise to

the level of culpability necessary to support a claim of deliberate indifference.

While Dr. Braly’s refusal to re view Bradberry’s VA records, coupled with the

failure to request these records until one year after his admittance to the Wynne

Unit, may amount to negligence, such failings do not constitute subject i ve

recklessness. 6 Our review of the summary judgment record reflects no genuinemistreatment under the Eighth Amendment.”); Varnado v. Lynaugh, 920 F.2d 320 (5th Cir.

1991).

7 Little v. Liquid Air Corp., 37 F.3d 1069 (5th Cir. 1994) (en banc); Johnson, 759

F.2d at 1238 (5th Cir. 1985).

8 Spears v. McCotter, 766 F.2d 179 (5th Cir. 1979).

9 Williams v. Chater, 87 F.3d 702 (5th Cir. 1996).

10 Colburn v. Bunge Towing, Inc., 883 F.2d 372 (5th Cir. 1989).

4 issue of material fact necessitating a trial. The district court’s grant of summary

judgment in favor of Drs. Braly and Nelson is affirmed. 7

Bradberry also contends that a fraud was perpetrated upon the court in that

at his Spears 8 h earing defendants misrepresented to the court the timing of their

request for his VA medical records. Bradberry moved for relief from judgment but

did not appeal the adverse decision on that motio n. We lack jurisdiction to hear

this claim. 9 We also lack jurisdiction to hear his complaint that the magistrate

judge improperly denied his request for counsel. That ruling was not appealed to

the district court and thus may not be heard by this court. 10

The judgment appealed is AFFIRMED.