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

No. 12-40543 Summary Calendar

DARRON MORGAN, Plaintiff-Appellant

v. TEXAS DEPARTMENT OF CRIMINAL JUSTICE MCCON N E L L 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, p r oceeding pro s e, appeals the denial of his c o mplaint against various prison officials and physicians for their alleged deliberate indifference to h is medical needs in violation of the Eighth Amendment’s prohibition on cruel and unusual punishment. Morgan challenges the grant of
summary judgment in favor o f defendants D r. Herrera and William Burgin and 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 J uly31, 2013 Ly l e W . Cay ce Clerk

* Purs uant to Fif

th Circuit Rule 47. 5, the court has d eterm ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et f orth in Fif

th Circuit Rule 47. 5. 4. Case: 12-40543 Document: 00512327691 Page: 1 Date Filed: 07/31/2013No. 12-40543

the dismissal o f his c laim a gainst another physician, Dr. Wolf, pursuant to Rule 12(b)(6). He a lso challenge s the d enial of his motions for the appointment of counsel and to compel discovery, and moves for l eave to a mend a supplemental brief. We GRANT leave to file the supple m e n t a l b r ief and AFFIRM the judgment below in part and DISMISS the appeal in part.

I. A. Darron Morgan, Texas prisoner # 640157, brought the present c ivil 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), i d. § 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 o f 2009. He was diagnosed as s uffering from asthma and allergy symptoms. Campos examined Morgan and p r escribed the a ntihistamine chlorphen. While taking the chlorphen, Morgan alleges that his nose began bleeding and developed s ores. When Morgan complained about the problem, D r. Wolfe saw him, and she pres c ribed a double antibiotic cream to apply to the s ores in h i s n o s e . While Dr. Wolfe prescribed the antibiotic
cream, D r. Herrera’s n ame was on the medication pass authorizing Morgan to obtain it. The double antibiotic cream healed the sore s i n M o r g a n ’ s n o s e , b ut Morgan alleges that he began experie n c ing a dverse side e ffects, including losing his hearing, balance, and sense o f smell. M o rgan a lso alleges that h e suffered from ulcers in h is m outh and throat, and a rash that developed on his face. The defendants dispute that those symptoms w ere side-effects of their treatment and, in support, o ffer 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 unidentifi ed medical personnel at
2 Case: 12-40543 Document: 00512327691 Page: 2 Date Filed: 07/31/2013No. 12-40543

McConnell prescribed triamcinolone cream a n d a n a ntib iotic for the r ash, but his symptoms did not improve. Dr. Wolfe a lso prescribed Kenalog injections over a six-month period. According to Morgan, he made a sick call request to Dr. Herrera a fter r eturning from the hospital. Whe n D r . H e rrera examined Morgan, Dr. Herrera allegedly told him that h e had damage to his alimentary canal that

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

was not able t o produce mucous, causing M o rgan considerable pain. The defendants offered evidence that M organ w as suffering from those symptoms before he was treated by p rison physicians and asserted that Morgan’s allegations as to damage to his alimentary canal had no basis in fact. Morgan complained of red spots a nd sores b e t w e en January 2011 and April 2011. During the relevant time period, M cConnell was on semi-lockdown, and h e m issed multiple medical appointments during this time period because

a security escort was not available. Due to this p r o b l e m , Burgin referred Morgan and all o ther a d m i ni s tr ativ e s e gr e g ation inmates with medical p roblems to b e seen by medical staff a t thei r c e l l s . M organ alleges that Burgin, the medical grievances manager, did not schedule the appointments, an a llegation that the defendants also d i s p u te. Morgan w as seen in his cell f or his s kin condition by a nurse on February 3, 2 011, based upon Burgin’s referral, and the

nurse referred M organ to a mid-level practitioner. M organ was ultimately seen by a physician’s assistant i n Ap r i l of 2011, diagnosed with having l i ce and a rash, and p rescribed medication. Burgin was the practic e manager at McConnell who was r esponsible for responding t o i nmate grievances regarding medical c are. Burgin was not licensed to practice medicine and h ad no medical training. This evidence w as uncontradicted by Morgan in the summary judgment record. The record reflects that Morgan filed a n umber of grievances with Burgin complaining of the f

o r egoing ailments and the alleged insufficiency of his medical treatment.
3 Case: 12-40543 Document: 00512327691 Page: 3 Date Filed: 07/31/2013No. 12-40543 B. Morgan filed the present § 1983 suit all e g i ng 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), w ho recommended that Morgan’s claims agai n st M cConnell and Morgan’s official-capacity claims against the defendants be dismissed based upon sovereign and El e v e n t h Amendment immunity. S he f

urther recommended that Morgan’s claims against Campos and Dr. Wol f

e b e d ismissed for failure to state a claim upon which relief may be granted. T h e d i strict court adopted the MJ’s report and recommendation and dismissed Morgan’s claims a gainst McConnell, Morgan’s official capacity claims against the d efendants, and Mo r gan’s claims against Campos and Dr. Wolfe. Morgan filed two mo t i o n s f o r appointment of counsel and various motions to compel discovery. The MJ denied all of the motions. Dr. Herrera and B urgin then moved for summary judgment, arguing that M o rgan had failed to exhaust his administrative r e medies because the four prison grievances he had filed relating to his medical conditions did n ot mention Dr. Herrera or Burgin a n d d id not d e tail his claims against them. The prison records they filed in s u pport of this claim, however, indicated that Morgan had filed a fifth p rison grievance that had been m isplaced b y prison authorities. Dr. Herrera and B urgin a l so sought summary judgment on the basis of qualified immunity and on the merits of Morgan’s claims. The MJ recommended that Dr. Herrera a nd 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 a n d the MJ’s denial of his moti o n s f

o r appointment of counsel. The district court overruled Morgan’s

o bj e c tions, 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: 07/31/2013No. 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 timel y f i l ed objections and a notice o f appeal from the district c ourt’s orders granting the defendants’ motion to d i s m i s s pursuant to Federal Rule of Civil Procedure 12(b)(6). However, Morgan did not object t o or seek district court review of the MJ’s orders denying his motions to compel discovery. W e therefore lack juri s d i c tion to consider Morgan’s argument that the MJ erred b y 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 n o t have jurisdiction to consider challenge to a magistrate judge’s discovery ruling because party di d not seek review in the district court); s e e a ls o Fed. R. Civ. P. 72(a). Accordingly, that portion of Morgan’s appeal is dism i ssed. See United States v. Renfro , 620 F.2d 497, 500 (5th Cir. 1980)

. We have jurisdiction over the remaining claims on appeal.

I II. On appeal, M organ challenges only the dismissal of his Eighth Amendment de lib e r at e i n dif f e r e n c e c laims against Dr. Wolfe under Rule 12(b)(6) and against Dr. H e r rera and Burgin under R u le 56. In Estelle v . Gamble , 429 U.S. 97 (1976), t h e Supreme Court recognized that th e Eighth Amendment requires the government to provide medical care to inmates because the failure to do so “ may actually produce physical ‘torture or a l i n g e r i ng death’” or unnecessary “pain and s uffering.” Id. a t 103 (citation o m i t t e d). “[A] prison

o f f i c i a l m ay be held liable under the Eighth Amendment for denying humane conditions of confinement only if he knows that i n mates face a substantial risk of s erious harm and disregards that risk by failing to take reasonable measures to abate it.” F

armer 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 o r failed to act b elieving that harm actually would befall an inmate;
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it is enough that the official acted or f ailed to act d espite his k nowledge of a substantial risk of serious harm.” Id. at 842. “Whether a p rison o fficial had the requisite k nowledge of a substantial risk i s a question o f f act subje c t to demonstration i n t h e usual ways, i ncluding i nference from circumstantial evidence, and a factfinder may conclude that a prison o fficial k n ew of a substantial risk from the very f a c t t h at the risk was obvious.” Id. at 842 (citations omitted); see a lso, e.g. , Gates v. Cook , 376 F.3d 323, 333 (5th Cir. 2004) ( s a m e ); Brown v . Bolin , 5 00 F

. App’x 309, 318-19 & n.5 (5th Cir. 2012) (unpublished) (Dennis, J., concurring in part and disse n t i n g in part) (same) (collecting cases), c ert. denied , No. 12-1257, 2013 WL 1 703411 (June 17, 2013). A trier of fact m ay infer that a § 1983 defendant had knowledge of the risk if the risk w as obvious, for instance, if the evidence shows that a doctor or other prison official “knows that s ome diseases are c o mmunicable and that a single needle is being used to administer flu shots t o prisoners but refuse s t o l i sten to a subordinate who he s trongly s uspects will attempt t o 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 l e v el of a constitutional violation, malpractice or n egligent care does not.” Stewart v . Murphy , 174 F .3d 530, 534 (5th Cir. 1999) (collecting cases); see also, e.g. , F armer , 5 11 U .S. at 835 (“[D]eliberate i ndifference describes a s tate of mind more blameworthy than negligence.”). Th us, a defendant must show that “the claimed i ndependent acts of negligence by each physician were . . . sufficient to raise a material fact issue that e a c h doctor knew that his acts or omissions subjected [the defendant] t o an excessive ri sk of harm, yet responded to the risk with deliberate indifference.” Stewart , 174 F.3d at 537.

A. First, Morgan challenges the dismissal of h is c laims against D r. Wolfe for failure to state a c laim upon which relief may be gr anted pursuant to 28 U.S.C.
6 Case: 12-40543 Document: 00512327691 Page: 6 Date Filed: 07/31/2013No. 12-40543

§§ 1915(e)(2)(B) and 1915A(b)(1), a ruling we review de novo , see R uiz v. United States , 160 F.3d 273, 275 (5th Cir. 1998). Morgan did not allege that Dr. Wolfe refused t o treat h i m o r d elayed treating him. Instead, h e a lleged that Dr. Wolfe provided i ncorrect or negligent treatment by prescribing o ngoing Kenalog injections despite their alleged side effects a nd by directing him to use double antibiotic cream o n i nternal nose sores when the cream had a l l e g e d l y only been approved f or external use. While prescribing incorrect t r e a t m ents or treatments that c ause s erious side effects might amount t o malpractice, 1 this allegation, without a further showing of deliberate indifference to serious medical needs, does not rise to the l e v e l o f a constitutional violation. A prison p hysician’s negligence or m alpractice 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 d i d not approve the alleged o f

f-label use of this antibiotic cream or that Dr. Wolfe violated professional standards of c are in administering either treatment are not enough to give rise to a constitutional violation absent a llegations of deliberate indifference to Morgan’s medical needs. M o rgan does not allege or point to circumstances that would suggest that Dr. Wolfe prescribed the antibiotic cream with k nowledge that the cream would pose “a substantial risk of serious harm,”

or that such a risk would h ave been obvious, and that Dr. Wolfe “disregard[ed] that risk by failing to take reasonable m easures to abate it.” Farmer , 511 U.S. at 847; see id. at 843-44 & n.8. We therefore affirm t h e d i s m i s s al of Morgan’s claims against Dr. Wolfe.

1 The d ef

end ants of

f ered the exp ert tes tim ony of a p hys ician who op ined t h a t the d ef end ants d id not violate the s tand ard of care in their treatm ent of M organ’s various
s ym p tom s . 7 Case: 12-40543 Document: 00512327691 Page: 7 Date Filed: 07/31/2013No. 12-40543 B. Morgan next argues that the district court erred by granting s u m m a r y judgment to Dr. Herrera and Burgin. We r eview de novo a district court’s grant of summary j u dgment u nder the usual standard. Nickell v. Beau View of Biloxi, L.L.C. , 6 36 F .3d 752, 754 (5th Cir. 2011). Summary judgment i s p r o p e r w hen the p leadings, depositions, admissions, and answers to interrogatories, together with affidavits, demonstrate that no genuine issue exists as to any m aterial 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, D r. Herrera a nd Burgin a rgue that Morgan’s claim

was untimely exhauste d

. M o r g a n r e s p o n d s th at h e e xh a u s t e d h is administrative remedies and that he raised c laims against Burgin in the prison grievance that

was misplaced b y prison officials. Congress enacted the PLRA “[i]n an effort to address th e l a r g e number of prisoner complaints filed in federal court

. . . . Among other r eforms, the PLRA mandates early judicial screening of prisoner complaints and requires priso n e r s t o e xh a u s t prison grievance p rocedures before filing suit.” Jones v. Bock , 5 4 9 U

. S

. 199, 202 (2007) (citing 28 U.S.C. § 1915A; 42 U.S.C. § 1 997e(a)). The requirement that plaintiffs exhaust their administrative remedies under the PLRA is an affirmative defense. Id. at 216. As such, the burden i s on the defendants to prove that a plain t i f f f a i l ed to exhaust his administrative remedies

. Se e D i llon v. Rogers , 596 F.3d 260, 266 (5th Cir. 2010). The summary judgment eviden ce p resented by Dr. Herrera and Burgin reflects that Morgan had filed a prison grievance during the relevant time period that prison officials could n ot locate or p r oduce. Morgan alleges that he exhausted his administrative r emedies regarding some o f his claims in that grievance. As D r. Herrera and Burgin did not show “beyond pe r a dventure all
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of the essential elements of the defense o f exhaustion,” they were not entitled to

summar y judgment on e xhaustion grounds. Id. However, “we may affirm a grant o f summary judgment on any ground supported by the record, even if it is different from that relied u pon by the district co u r t .” J a nvey v. Democratic Senatorial Campaign Co m m., 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 entitl e d t o qu alif ied immunity

as t o M organ’s deliberate indifference claim. “The doctrine o f q ualified immunity protects government officials from l i ability f rom c ivil damages insofar

as their conduct does not violate clearly e stablished statutory o r constitutional rights of which a reasonable person would have known.” Rockwell v. B rown , 664 F.3d 985, 990-91 (5th C ir. 2 011), cert. denied , 1 3 2 S

. Ct. 2433 (2012) (quoting Pearson v. Callahan , 555 U.S. 223, 231 (2009 ) (internal quotation marks omitted)). When, a s here, the defendants have asserted qualified immunity in

a summary j udgment motion, “the burden then shifts to the plaintiff, who must rebut the defense by establishing a genuine f act issue as to whether the official’s allegedly wrongful conduct violated c l e arly e s t ab li s h e d l aw . ” B rown v. Callahan , 623 F.3d 249, 253 (5th Cir. 2010). “Therefore, the qualified-immunity inquiry has two p rongs: (1) whether an official’s conduct violated a c onstitutional right of the plaintiff, and (2) whether that right was clearly established at the time of t h e violation. A court m ay rely on either prong o f 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 d o u b l e a ntibiotic cream f or internal use, and that D r. Herrera told Morgan that his alimentary canal was damaged and that n othing could be done about it. For th e r e a s o n s set f

orth above, Morgan h as failed to allege a constitutional violation arising from h is physicians’ instructions that he use the cream, much
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less that Dr. Herrera, whose name only a ppeared on the prescription form as the prescribing doctor, w as awar e o f a n y serious risk to Morgan’s health o r safety that w ould be p o sed by such o ff-label use of the medicine. Likewise, the summary judgment record did not reflect that Dr. H errera e ver e x a m i n e d Morgan or that he had any r eason to b elieve that his alimentary canal had been damaged. Accordingly, Morgan has not demonstrated that Dr. Herrera violated his clearly established constitutional ri ght against d eliberate indifference in his medical care. We therefore af f i r m t h e grant of s ummary 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 t o see him in his cell, and the nurse did not provide treatment, a n d t h a t M organ did not receive treatment on site at the clinic due to a l a c k o f s e curity personnel to transport him t o prison medical facilities. However, the summary j u d g ment record reflects that Burgin responded to Morgan’s grievances and a rranged 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, b ut may be held liable for his or her role in a constitutional violation premised on the d efendant’s individual conduct as a supervisor, for example, his or her failure to train. See Cozzo v. Tangip a h oa Parish Council–President Gov’t , 279 F.3d 273, 286-87 (5th Cir. 2 002). Here, h owever, Morgan did not provide e vidence or allege that Burgin personally participated in h is medical treatment, that Burgin h ad the ability or responsibility to provide him medical treatment, or that Burgin had any control or a uthority o ver security

2 The record als o evinces that, ultim ately, M organ w as p res cribed Calam ine lot i o n , H ytone ( a hyd rocortis one cream ) , and Benad ryl for his ras h, and that the s ym p tom s w ere res olved

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

personnel that would have allowed Burgin to provide the proper escort to take Morgan to medical appointments. 3 Burgin s tated in h is affidavit that he was not

a clinician, did not have a l icense to practice medicine, and had no medical training; and that his job involved responding to grievances about the medical

care of the inmates. T his e vi dence 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 s y m p toms of which he complained. As Morgan did not produce evidence showing that Burgin was responsible for any d elay in treatment that may h ave occurred, and that Burgin did in f act refe r Morgan to be seen by medical staff, the summary judgment

r e cord 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 M organ als o m ak es a num ber of new f actual allegations on ap p e a l , s u c h a s that he never receivedp rop er treatm ent f or his cond itions until he f iled the p res ent law s uit in 2011 and that the p ris on p harm acy interf ered w ith his treatm ent by d enying him m ed ications

. In general, w e d o not cons id er new evid ence that w as not p res ented to the d is trict court or new claim s that w ere not rais ed in the d is trict court. Theri ot v . Pa ri sh of Jef f erson , 185 F. 3d 477, 491 n. 26 (5th Cir. 1999) ; Stew a rt G la ss & M i rror, Inc. v . U

. S. A uto G la ss D i sc. Ctrs. , Inc. , 200 F. 3d 307, 316- 17 ( 5th Cir. 2 0 0 0 )

. Becaus e Morgan d id not rais e thes e claim s in the d is trict court, w e d o not cons id er thos e claim s . See Stew a rt G lass & M i rror, Inc. , 200 F. 3d at 316- 17.

4 Finally, M organ challenges the d is trict court’s d enial of his m otion f or couns el. See Cup i t v. Jones , 835 F. 2d 82, 86 ( 5th Cir. 1987) ( p rovid ing that a p arty in a civil rights action
m us t s how extraord inary circum s tances to be entitled to ap p ointed couns el)

. In light of our d i s p os ition of the m erits of M organ’s claim s , M organ has not s how n that the d is trict court com m itted a clear abus e of d is cretion by denying his reques ts f or ap p ointm ent of couns el. See i d. 11 Case: 12-40543 Document: 00512327691 Page: 11 Date Filed: 07/31/2013