IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-40543

Summary Calendar

DARRON MORGAN,

Plaintiff-Appellant

v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE MCCONNELL UNIT;

MAXIMILLIANO HERRERA; REFUGIA CAMPOS; “JOHN DOE” WOLF;

WILLIAM BURGIN,

Defendants-Appellees

Appeals from the United States District Court

for the Southern District of Texas

USDC No. 2:11-CV-124

Before JONES, DENNIS, and HAYNES, Circuit Judges.

PER CURIAM:*

Darron Morgan, proceeding pro se, appeals the denial of his complaint

against various prison officials and physicians for their alleged deliberate

indifference to his medical needs in violation of the Eighth Amendment’s

prohibition on cruel and unusual punishment. Morgan challenges the grant of

summary judgment in favor of defendants Dr. Herrera and William Burgin and

United States Court of Appeals

Fifth Circuit

F I L E D

July 31, 2013

Lyle W. Cayce

Clerk

* Pursuant to Fifth Circuit Rule 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not be published and is not precedent except under the limited circumstances set forth in Fifth

Circuit Rule 47.5.4.

 Case: 12-40543 Document: 00512327691 Page: 1 Date Filed: 07/31/2013
No. 12-40543

the dismissal of his claim against another physician, Dr. Wolf, pursuant to Rule

12(b)(6). He also challenges the denial of his motions for the appointment of

counsel and to compel discovery, and moves for leave to amend a supplemental

brief. We GRANT leave to file the supplemental brief and AFFIRM the

judgment below in part and DISMISS the appeal in part.

I.

A.

Darron Morgan, Texas prisoner # 640157, brought the present civil action

against the Texas Department of Criminal Justice McConnell Unit, Dr. Herrera,

Nurse Campos, Dr. Wolfe, and William Burgin, pursuant to 42 U.S.C. § 1983 and

the Prison Litigation Reform Act (PLRA), id. § 1997e et seq. While Morgan was

imprisoned at the McConnell Unit, he complained of congestion, nasal drip, and

a runny nose to prison officials in April of 2009. He was diagnosed as suffering

from asthma and allergy symptoms. Campos examined Morgan and prescribed

the antihistamine chlorphen. While taking the chlorphen, Morgan alleges that

his nose began bleeding and developed sores. When Morgan complained about

the problem, Dr. Wolfe saw him, and she prescribed a double antibiotic cream

to apply to the sores in his nose. While Dr. Wolfe prescribed the antibiotic

cream, Dr. Herrera’s name was on the medication pass authorizing Morgan to

obtain it. 

The double antibiotic cream healed the sores in Morgan’s nose, but Morgan

alleges that he began experiencing adverse side effects, including losing his

hearing, balance, and sense of smell. Morgan also alleges that he suffered from

ulcers in his mouth and throat, and a rash that developed on his face. The

defendants dispute that those symptoms were side-effects of their treatment

and, in support, offer the expert testimony of a physician who opined that those

symptoms arose from Morgan’s underlying conditions that the medicines were

intended to treat. Morgan states that unidentified medical personnel at

2

 Case: 12-40543 Document: 00512327691 Page: 2 Date Filed: 07/31/2013
No. 12-40543

McConnell prescribed triamcinolone cream and an antibiotic for the rash, but his

symptoms did not improve. Dr. Wolfe also prescribed Kenalog injections over a

six-month period. According to Morgan, he made a sick call request to Dr.

Herrera after returning from the hospital. WhenDr. Herrera examined Morgan,

Dr. Herrera allegedly told him that he had damage to his alimentary canal that

was not treatable. Due to the damage to the alimentary canal, Morgan says he

was not able to produce mucous, causing Morgan considerable pain. The

defendants offered evidence that Morgan was suffering from those symptoms

before he was treated by prison physicians and asserted that Morgan’s

allegations as to damage to his alimentary canal had no basis in fact.

Morgan complained of red spots and sores between January 2011 and

April 2011. During the relevant time period, McConnell was on semi-lockdown,

and he missed multiple medical appointments during this time period because

a security escort was not available. Due to this problem, Burgin referred

Morgan and all other administrative segregation inmates with medical problems

to be seen by medical staff at their cells. Morgan alleges that Burgin, the

medical grievances manager, did not schedule the appointments, an allegation

that the defendants also dispute. Morgan was seen in his cell for his skin

condition by a nurse on February 3, 2011, based upon Burgin’s referral, and the

nurse referred Morgan to a mid-level practitioner. Morgan was ultimately seen

by a physician’s assistant in April of 2011, diagnosed with having lice and a

rash, and prescribed medication. Burgin was the practice manager at

McConnell who was responsible for responding to inmate grievances regarding

medical care. Burgin was not licensed to practice medicine and had no medical

training. This evidence was uncontradicted by Morgan in the summary

judgment record.

The record reflects that Morgan filed a number of grievances with Burgin

complaining of the foregoing ailments and the alleged insufficiency of his

medical treatment.

3

 Case: 12-40543 Document: 00512327691 Page: 3 Date Filed: 07/31/2013
No. 12-40543

B.

Morgan filed the present § 1983 suit alleging the violation of his Eighth

Amendment right to be free from cruel and unusual punishment. The case was

initially referred to a Magistrate Judge (MJ), who recommended that Morgan’s

claims against McConnell and Morgan’s official-capacity claims against the

defendants be dismissed based upon sovereign and Eleventh Amendment

immunity. She further recommended that Morgan’s claims against Campos and

Dr. Wolfe be dismissed for failure to state a claim upon which relief may be

granted. The district court adopted the MJ’s report and recommendation and

dismissed Morgan’s claims against McConnell, Morgan’s official capacity claims

against the defendants, and Morgan’s claims against Campos and Dr. Wolfe. 

Morgan filed two motions for appointment of counsel and various motions to

compel discovery. The MJ denied all of the motions. 

Dr. Herrera and Burgin then moved for summary judgment, arguing that

Morgan had failed to exhaust his administrative remedies because the four

prison grievances he had filed relating to his medical conditions did not mention

Dr. Herrera or Burgin and did not detail his claims against them. The prison

records they filed in support of this claim, however, indicated that Morgan had

filed a fifth prison grievance that had been misplaced by prison authorities. Dr.

Herrera and Burgin also sought summary judgment on the basis of qualified

immunity and on the merits of Morgan’s claims.

The MJ recommended that Dr. Herrera and Burgin be granted summary

judgment because Morgan had not exhausted his administrative remedies and

because they were entitled to qualified immunity. Morgan filed a timely

objection challenging the MJ’s recommendation and the MJ’s denial of his

motions for appointment of counsel. The district court overruled Morgan’s

objections, adopted the report and recommendation of the MJ, and granted

summary judgment in favor of Dr. Herrera and Burgin. Morgan filed a timely

notice of appeal.

4

 Case: 12-40543 Document: 00512327691 Page: 4 Date Filed: 07/31/2013
No. 12-40543

II.

The district court had jurisdiction pursuant to 28 U.S.C. § 1332. We have

jurisdiction to review the final orders of the district court. Id. § 1291. Morgan

timely filed objections and a notice of appeal from the district court’s orders

granting the defendants’ motion to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6). However, Morgan did not object to or seek district court

review of the MJ’s orders denying his motions to compel discovery. We therefore

lack jurisdiction to consider Morgan’s argument that the MJ erred by denying

his motions to compel. See Singletary v. B.R.X., Inc., 828 F.2d 1135, 1137 (5th

Cir. 1987) (holding that this court did not have jurisdiction to consider challenge

to a magistrate judge’s discovery ruling because party did not seek review in the

district court); see also Fed. R. Civ. P. 72(a). Accordingly, that portion of

Morgan’s appeal is dismissed. See United States v. Renfro, 620 F.2d 497, 500

(5th Cir. 1980). We have jurisdiction over the remaining claims on appeal.

III.

On appeal, Morgan challenges only the dismissal of his Eighth

Amendment deliberate indifference claims against Dr. Wolfe under Rule 12(b)(6)

and against Dr. Herrera and Burgin under Rule 56. In Estelle v. Gamble, 429

U.S. 97 (1976), the Supreme Court recognized that the Eighth Amendment

requires the government to provide medical care to inmates because the failure

to do so “may actually produce physical ‘torture or a lingering death’” or

unnecessary “pain and suffering.” Id. at 103 (citation omitted). “[A] prison

official may be held liable under the Eighth Amendment for denying humane

conditions of confinement only if he knows that inmates face a substantial risk

of serious harm and disregards that risk by failing to take reasonable measures

to abate it.” Farmer v. Brennan, 511 U.S. 825, 847 (1994).

To prevail on such a claim, a § 1983 “claimant need not show that a prison

official acted or failed to act believing that harm actually would befall an inmate;

5

 Case: 12-40543 Document: 00512327691 Page: 5 Date Filed: 07/31/2013
No. 12-40543

it is enough that the official acted or failed to act despite his knowledge of a

substantial risk of serious harm.” Id. at 842. “Whether a prison official had the

requisite knowledge of a substantial risk is a question of fact subject to

demonstration in the usual ways, including inference from circumstantial

evidence, and a factfinder may conclude that a prison official knew of a

substantial risk from the very fact that the risk was obvious.” Id. at 842

(citations omitted); see also, e.g., Gates v. Cook, 376 F.3d 323, 333 (5th Cir. 2004)

(same); Brown v. Bolin, 500 F. App’x 309, 318-19 & n.5 (5th Cir. 2012)

(unpublished) (Dennis, J., concurring in part and dissenting in part) (same)

(collecting cases), cert. denied, No. 12-1257, 2013 WL 1703411 (June 17, 2013). 

A trier of fact may infer that a § 1983 defendant had knowledge of the risk if the

risk was obvious, for instance, if the evidence shows that a doctor or other prison

official “knows that some diseases are communicable and that a single needle is

being used to administer flu shots to prisoners but refuses to listen to a

subordinate who he strongly suspects will attempt to explain the associated risk

of transmitting disease[.]” Farmer, 511 U.S. at 843-44 & n.8.

“[A]lthough inadequate medical treatment may, at a certain point, rise to

the level of a constitutional violation, malpractice or negligent care does not.” 

Stewart v. Murphy, 174 F.3d 530, 534 (5th Cir. 1999) (collecting cases); see also,

e.g., Farmer, 511 U.S. at 835 (“[D]eliberate indifference describes a state of mind

more blameworthy than negligence.”). Thus, a defendant must show that “the

claimed independent acts of negligence by each physician were . . . sufficient to

raise a material fact issue that each doctor knew that his acts or omissions

subjected [the defendant] to an excessive risk of harm, yet responded to the risk

with deliberate indifference.” Stewart, 174 F.3d at 537. 

A.

First, Morgan challenges the dismissal of his claims against Dr. Wolfe for

failure to state a claim upon which relief may be granted pursuant to 28 U.S.C.

6

 Case: 12-40543 Document: 00512327691 Page: 6 Date Filed: 07/31/2013
No. 12-40543

§§ 1915(e)(2)(B) and 1915A(b)(1), a ruling we review de novo, see Ruiz v. United

States, 160 F.3d 273, 275 (5th Cir. 1998).

Morgan did not allege that Dr. Wolfe refused to treat him or delayed

treating him. Instead, he alleged that Dr. Wolfe provided incorrect or negligent

treatment by prescribing ongoing Kenalog injections despite their alleged side

effects and by directing him to use double antibiotic cream on internal nose sores

when the cream had allegedly only been approved for external use. While

prescribing incorrect treatments or treatments that cause serious side effects

might amount to malpractice,1this allegation, without a further showing of

deliberate indifference to serious medical needs, does not rise to the level of a

constitutional violation. A prison physician’s negligence or malpractice cases

does not typically rise to the level of cruel and unusual punishment within the

meaning of the Eighth Amendment. See, e.g., Stewart, 174 F.3d at 534; see also

Farmer, 511 U.S. at 835. The allegations that the FDA did not approve the

alleged off-label use of this antibiotic cream or that Dr. Wolfe violated

professional standards of care in administering either treatment are not enough

to give rise to a constitutional violation absent allegations of deliberate

indifference to Morgan’s medical needs. Morgan does not allege or point to

circumstances that would suggest that Dr. Wolfe prescribed the antibiotic cream

with knowledge that the cream would pose “a substantial risk of serious harm,”

or that such a risk would have been obvious, and that Dr. Wolfe “disregard[ed]

that risk by failing to take reasonable measures to abate it.” Farmer, 511 U.S.

at 847; see id. at 843-44 & n.8. We therefore affirm the dismissal of Morgan’s

claims against Dr. Wolfe.

1 The defendants offered the expert testimony of a physician who opined that the

defendants did not violate the standard of care in their treatment of Morgan’s various

symptoms.

7

 Case: 12-40543 Document: 00512327691 Page: 7 Date Filed: 07/31/2013
No. 12-40543

B.

Morgan next argues that the district court erred by granting summary

judgment to Dr. Herrera and Burgin. We review de novo a district court’s grant

of summary judgment under the usual standard. Nickell v. Beau View of Biloxi,

L.L.C., 636 F.3d 752, 754 (5th Cir. 2011). Summary judgment is proper when

the pleadings, depositions, admissions, and answers to interrogatories, together

with affidavits, demonstrate that no genuine issue exists as to any material fact

and that the movant is entitled to judgment or partial judgment as a matter of

law. Fed. R. Civ. P. 56(a).

1.

As an initial matter, Dr. Herrera and Burgin argue that Morgan’s claim

was untimely exhausted. Morgan responds thathe exhausted his administrative

remedies and that he raised claims against Burgin in the prison grievance that

was misplaced by prison officials. Congress enacted the PLRA “[i]n an effort to

address the large number of prisoner complaints filed in federal court . . . .

Among other reforms, the PLRA mandates early judicial screening of prisoner

complaints and requires prisoners to exhaust prison grievance procedures before

filing suit.” Jones v. Bock, 549 U.S. 199, 202 (2007) (citing 28 U.S.C. § 1915A;

42 U.S.C. § 1997e(a)). The requirement that plaintiffs exhaust their

administrative remedies under the PLRA is an affirmative defense. Id. at 216.

As such, the burden is on the defendants to prove that a plaintiff failed to

exhaust his administrative remedies. See Dillon v. Rogers, 596 F.3d 260, 266

(5th Cir. 2010). 

The summary judgment evidence presented by Dr. Herrera and Burgin

reflects that Morgan had filed a prison grievance during the relevant time period

that prison officials could not locate or produce. Morgan alleges that he

exhausted his administrative remedies regarding some of his claims in that

grievance. As Dr. Herrera and Burgin did not show “beyond peradventure all

8

 Case: 12-40543 Document: 00512327691 Page: 8 Date Filed: 07/31/2013
No. 12-40543

of the essential elements of the defense of exhaustion,” they were not entitled to

summary judgment on exhaustion grounds. Id. However, “we may affirm a

grant of summary judgment on any ground supported by the record, even if it is

different from that relied upon by the district court.” Janvey v. Democratic

Senatorial Campaign Comm., Inc., 712 F.3d 185, 193 (5th Cir. 2013). We

therefore turn to the merits of the defendants’ motion for summary judgment.

2.

Dr. Herrera and Burgin assert that they are entitled to qualified immunity

as to Morgan’s deliberate indifference claim. “The doctrine of qualified

immunity protects government officials from liability from civil damages insofar

as their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.” Rockwell v. Brown, 664

F.3d 985, 990-91 (5th Cir. 2011), cert. denied, 132 S. Ct. 2433 (2012) (quoting

Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks

omitted)). When, as here, the defendants have asserted qualified immunity in

a summary judgment motion, “the burden then shifts to the plaintiff, who must

rebut the defense by establishing a genuine fact issue as to whether the official’s

allegedly wrongful conduct violated clearly established law.” Brown v. Callahan,

623 F.3d 249, 253 (5th Cir. 2010). “Therefore, the qualified-immunity inquiry

has two prongs: (1) whether an official’s conduct violated a constitutional right

of the plaintiff, and (2) whether that right was clearly established at the time of

the violation. A court may rely on either prong of the defense in its analysis.”

Rockwell, 664 F.3d at 990-91 (citations and quotation marks omitted). 

Morgan claims that Dr. Herrera prescribed or approved the prescription

of double antibiotic cream for internal use, and that Dr. Herrera told Morgan

that his alimentary canal was damaged and that nothing could be done about it.

For the reasons set forth above, Morgan has failed to allege a constitutional

violation arising from his physicians’ instructions that he use the cream, much

9

 Case: 12-40543 Document: 00512327691 Page: 9 Date Filed: 07/31/2013
No. 12-40543

less that Dr. Herrera, whose name only appeared on the prescription form as the

prescribing doctor, was aware of any serious risk to Morgan’s health or safety

that would be posed by such off-label use of the medicine. Likewise, the

summary judgment record did not reflect that Dr. Herrera ever examined

Morgan or that he had any reason to believe that his alimentary canal had been

damaged. Accordingly, Morgan has not demonstrated that Dr. Herrera violated

his clearly established constitutional right against deliberate indifference in his

medical care. We therefore affirm the grant of summary judgment in Dr.

Herrera’s favor on grounds of qualified immunity.

With respect to Morgan’s claim against Burgin, Morgan offered evidence

that he complained to Burgin about red spots or sores all over his body but did

not receive treatment until months later. He contends that Burgin could have

ensured that he received treatment because Burgin sent a nurse to see him in

his cell, and the nurse did not provide treatment, and that Morgan did not

receive treatment on site at the clinic due to a lack of security personnel to

transport him to prison medical facilities. However, the summary judgment

record reflects that Burgin responded to Morgan’s grievances and arranged for

Morgan to see a Dr. Stein on the premises.2

A defendant may not be held liable under § 1983 pursuant to a theory of

respondeat superior, but may be held liable for his or her role in a constitutional

violation premised on the defendant’s individual conduct as a supervisor, for

example, his or her failure to train. See Cozzo v. Tangipahoa Parish

Council–President Gov’t, 279 F.3d 273, 286-87 (5th Cir. 2002). Here, however,

Morgan did not provide evidence or allege that Burgin personally participated

in his medical treatment, that Burgin had the ability or responsibility to provide

him medical treatment, or that Burgin had any control or authority over security

2 The record also evinces that, ultimately, Morgan was prescribed Calamine lotion,

Hytone (a hydrocortisone cream), and Benadryl for his rash, and that the symptoms were

resolved.

10

 Case: 12-40543 Document: 00512327691 Page: 10 Date Filed: 07/31/2013
No. 12-40543

personnel that would have allowed Burgin to provide the proper escort to take

Morgan to medical appointments.3 Burgin stated in his affidavit that he was not

a clinician, did not have a license to practice medicine, and had no medical

training; and that his job involved responding to grievances about the medical

care of the inmates. This evidence is uncontradicted in the record. The record

also reflects that Morgan was under the ongoing care of the McConnell medical

staff and that he was seen dozens of times for the symptoms of which he

complained. As Morgan did not produce evidence showing that Burgin was

responsible for any delay in treatment that may have occurred, and that Burgin

did in fact refer Morgan to be seen by medical staff, the summary judgment

record reflects that Burgin did not violate Morgan’s clearly established

constitutional rights. Accordingly, Burgin was entitled to qualified immunity.4

AFFIRMED; APPEAL DISMISSED IN PART; MOTION FOR LEAVE TO

FILE SUPPLEMENTAL BRIEF GRANTED.

3 Morgan also makes a number of new factual allegations on appeal, such as that he

never received proper treatment for his conditions until he filed the present lawsuit in 2011

and that the prison pharmacy interfered with his treatment by denying him medications. In

general, we do not consider new evidence that was not presented to the district court or new

claims that were not raised in the district court. Theriot v. Parish of Jefferson, 185 F.3d 477,

491 n.26 (5th Cir. 1999); Stewart Glass & Mirror, Inc. v. U.S. Auto Glass Disc. Ctrs., Inc., 200

F.3d 307, 316-17 (5th Cir. 2000). Because Morgan did not raise these claims in the district

court, we do not consider those claims. See Stewart Glass & Mirror, Inc., 200 F.3d at 316-17.

4 Finally, Morgan challenges the district court’s denial of his motion for counsel. See

Cupit v. Jones, 835 F.2d 82, 86 (5th Cir. 1987) (providing that a party in a civil rights action

must show extraordinary circumstances to be entitled to appointed counsel). In light of our

disposition of the merits of Morgan’s claims, Morgan has not shown that the district court

committed a clear abuse of discretion by denying his requests for appointment of counsel. See

id.

11

 Case: 12-40543 Document: 00512327691 Page: 11 Date Filed: 07/31/2013