### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-50227 Summary Calendar

PATRICK WAYNE BELL, Plaintiff-Appellant

v. PATRICIA O ’ B RI E N , Nur s e Pr ac titi o n e r in h e r Individual a nd Official C apacity, Defendant-Appellee

Appeals from the United States District Court for the Western District of Texas USDC No. 5:10-CV-742

Before SMITH, PRADO, and HIGGINSON, Circuit Judges. PER CURIAM: * Patrick Wayne B ell, Texas prisoner # 1190375, a ppeals the district court’s summary judgment for the defendant, Nurse Practitioner Patricia O’Brien, on grounds of qualified immunity. Bell does not challenge the determination of the magistrate judge (MJ), accepted b y the district court, that O’Brien was immune from suit in her official capacity and could no t b e held liable u n der a theory of respondeat superior for the conduct of nurses u nder her supervision. Nor does he challenge the distri c t c o u r t’s dismissal of his claims against Nathaniel U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D April 19, 2013 Ly l e W . Cayce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-50227 Document: 00512214660 Page: 1 Date Filed: 04/19/2013No. 12-50227

Quarterman, the director of the Texas Department of Crimi n a l Justice, Institutional D ivision, and h i s s uccessor, Rick Thaler. Bell’s motion to hold ruling in this case pending a decision in another suit he filed is DENIED. Bell asserts that rulings by the MJ show that the MJ was biased against him. These assertions d o not establish that the MJ was b iased or show that the MJ’s p artiality should o therwise b e questioned. See Liteky v. United States , 510 U.S. 540, 555 (1994). Bell did not file objections to the MJ’s report and recommendation to grant O’Brien’s motion for summary judgment, even though the MJ advised Bell of the
consequences of fa i l i n g to do so. As a consequence, we review the factual findings and legal conclusions accepted by the district court for plain error. See Douglass v. United Servs. Auto. Ass’n , 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc); Puckett v. United States , 556 U

. S. 129, 1 35 ( 2009). Because O’Brien asserted qualified immunity, Bell bore the burden of rebutting th at d efense by establi s hing a genuine dispute as to whether O’Brien’s conduct violated a constitutional right of Bell’s a nd whether that right was clearly established at the time of the violation. B rown v. Callahan , 623 F.3d 2 49, 253 (5th Cir. 2010). Bell contends that the district court should h ave c onsidered the following issues of material f act that w o u l d have precluded summary judgment: (1) O’Brien delayed o r denied him access t o a hospital and to personnel capable of diagnosing a nd treating his condition and (2) O’Brien delayed o r d e nied him

access to appropriately qualified health care personnel. I n s u p p ort of his arguments, Bell cites d eposit i on testimony of three nurses and attaches transcripts o f the d epositions to his appellate brief. B ecause the nurses’ deposition testimony w as n o t submitted to the district court a nd is n ot found in the r ecord, we may not consider it. Theriot v. Parish of Jefferson , 185 F.3d 477, 491 n.26 (5th Cir. 1999). The MJ c o n s i d ered and rejected Bell’s arguments that O ’Brien delayed o r denied him access to qualified health care personnel and delayed or denied his access to a hospital. B ell did not present any summary 2 Case: 12-50227 Document: 00512214660 Page: 2 Date Filed: 04/19/2013No. 12-50227

judgment evidence, and the record contains none, showing that O ’Brien was not “qualified h ealthcare p ersonnel.” He does n ot point t o a ny evidence in the record that would e stablish that O’Brien deliberately d elayed his access to treatment,

see Mendoza v. Lynaugh , 989 F.2d 191, 1 95 (5th Cir. 1993), “refused t o treat him, ignored his complaints, intentionally treated him incorrectly, or engaged in any si m i l a r conduct that would clearly evince a wanton disregard for any serious medical n eeds,” Domino v. Tex. Dep’t of Crim. Justice , 2 39 F.3d 752, 755 (5th Cir. 2001) (internal quotation marks omitted). Accordingly, he has not s hown that t h e district court e rred, plainly or otherwise, in granting O’Brien’s mo t i o n f o r summary judgment. See Puckett , 556 U.S. at 135. For the f irst time, B ell c ontends i n his appeal that the district court should have considered that O’Brien failed in her du ty as a “gatekeeper” b y delaying his

access to a hospital and to qualified health care personnel capable of treating his condition. He also raises the following arguments for the first time on appeal: O’Brien did not carry out discharge orders for a f ollow-up doctor’s visit or to give him a certain medicine for his lung infection; O’Brien ignored his EKG and heart condition, resulting in the need for a catheter t o r e l i e v e p ressure o n his heart; although O’Brien averred that she believed her treatment of Bell was effective, she admitted t h a t she was not a pulmonologist and does n ot diagnose or treat such conditi o n s; O’Brien stated falsely that she did not refer Bell to rheumatology until December 4, 2008, because his sedimentation rate was up, when the medical r ecords show that his sedimentation rate w as up on November 21, 2008, and that he should have been referred to rheumatology or sent to the hospital sooner. Although Bell raised similar arguments in the district court, he did n ot raise these specific issues in his complaint, his questionnaire responses,

or in his response to O’Brien’s motion for summary judgment. Accordingly, we do not r eview these arguments. See Varnado v. Lynaugh , 9 20 F.2d 3 20, 321 (5th Cir. 1991). AFFIRMED; MOTION DENIED.

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