1 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that this opinion should not be published and is not precedent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. IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-30501

Summary Calendar

ELMO HUMPHREY, III,

Plaintiff-Appellee,

versus

LOUISIANA STATE PENITENTIARY; ET AL.,

Defendants,

HAND, DR.; TARVER, DR.; WIEST, DR.; BURL CAIN,

Defendants-Appellants.

-------------------- Appeal from the United States District Court

for the Middle District of Louisiana

USDC No. 99-CV-450-B

-------------------- January 10, 2002 Before DUHÉ, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM: 1

Elmo Humphrey, III, filed a civil rights complaint against the

defendants, alleging that they were deliberately indifferent to his

serious medical needs in refusing and/or misdiagnosing and

improperly treating his medical condition. The defendants appeal

the district court’s denial of their motion to dismiss based on

qualified and Eleventh Amendment immunity.2

We have jurisdiction to review this order to the extent it

turns on an issue of law. See Mitchell v. Forsyth , 472 U.S. 511,

5 24-25 (1985). We review d e novo the district court’s denial of

the motion to dismiss.

We note first that the district court failed to consider the

adequacy of Appellee’s allegations under the rubric of Schultea v.

W ood

, 47 F.3d 1427, 1432-33 (5 th Cir. 1995) (en banc) (imposing a

“heightened pleading” standard on plaintiff when claims are met by

a qualified immunity defense).

Humphrey made inconsistent allegations that the defendant

doctors failed to treat him and treated him for a condition

different than the one he suffered. Humphrey’s allegation that the

doctors misdiagnosed and failed to properly treat his gangrene and,

instead, treated him for hemorrhoids amounts, at most, to

malpractice, neglect, or negligence, not deliberate indifference.

This does not establish an unconstitutional denial of care. S ee

V arnado v. Lynaugh , 920 F.2d 320, 321 (5th Cir. 1991). To the

extent that Humphrey alleged that one of the doctors may have

refused to trea t him, read in the context of all of Humphrey’s

allegations that he was misdiagnosed and treated for hemorrhoids,

the refusal-to-treat appears to be an allegation that a doctor did

not treat Humphrey when or in a manner that H umphrey wanted. At

most, this amounts to a disagreement by Humphrey with the type and

timing of the treatment he received, and is insufficient to state

an unconstitutional denial of medical care. S ee Varnado

, 920 F.2d

at 321.3

Humphrey thus has not stated a valid claim of deliberate

indifference to medical needs in connection with th e defendant

doctors’ treatment of his m edical condition. Accordingly, the

defendant doctors were entitled to qualified immunity. S ee Harris

v. Victoria Indep. Sch. Dist. , 168 F.3d 216, 223 (5th Cir. 1999).

The district court adopted the magistrate judge’s conclusion

that Humphrey’s allegation that Warden Cain had in place a

deficient medical delivery policy was sufficient to state a claim.

However, in light of Humphrey’s allegation that he actually

received treatment, albeit for a condition other than the one he

actually suffered, his conclusional allegation regarding a

deficient medical delivery policy must fail. Even if the Warden

had such a deficient policy, Humphrey failed to allege that the

policy caused his injury or a constitution al violation by the

defendant doctors.

Because Humphrey failed to allege a constitutional violation

by the defendant doctors or by Warden Cain, the district court

erred in concluding that the Appellants were not enti tled to

qualified immunity.

We VACATE the district court’s denial of the defendants’

motion to dismiss based on qualified immunity. As this leaves no

remaining federal claims involved in the case, the district court

should decline to exercise j urisdiction under 28 U.S.C.

§ 1367(c)(3) over the supplemental state-law claims. We VACATE the

denial of the motion to dismiss based on Eleventh Amendment4

immunity and REMAND those claims to district court for di smissal

without prejudice.

VACATED AND REMANDED.