* Pursuant to 5TH CIR. 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should not be published and is not precedent except under the limited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 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-10062

Summary Calendar

SHELBY WAYNE FIFE

Plaintiff-Appellant

v.

NFN HENSLEY, Health and Medical Administrator; SHANE MARTINEZ,

Health and Medical Administrator; BEN LUONG, Physician-Medical Director,

Preston E. Smith Unit

Defendants-Appellees

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 5:06-CV-203

Before WIENER, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Shelby Wayne Fife, formerly Texas prisoner # 1039740,

appeals the district court’s grant of summary judgment for the defendants and

dismissal of his 42 U.S.C. § 1983 complaint. Fife alleged that the defendants

were deliberately indifferent to his serious medical needs following an allegedly

botched surgery on his left foot. 

United States Court of Appeals

Fifth Circuit

F I L E D

February 12, 2009

Charles R. Fulbruge III

Clerk
No. 08-10062

2

As an initial matter, Fife’s motion to supplement the record on appeal is

denied. See United States v. Flores, 887 F.2d 543, 546 (5th Cir. 1989). The

district court did not abuse its discretion by denying Fife’s motion to supplement

his complaint with claims of retaliation and harassment by the defendants, so

we too decline to consider these claims in this appeal. See Burns v. Exxon Corp.,

158 F.3d 336, 343 (5th Cir. 1998); Leverette v. Louisville Ladder Co., 183 F.3d

339, 342 (5th Cir. 1999)

We review the grant of a motion for summary judgment de novo.

Threadgill v. Prudential Sec. Group, Inc., 145 F.3d 286, 292 (5th Cir. 1998).

Summary judgment is appropriate if the record discloses “that there is no

genuine issue as to any material fact and that the movant is entitled to

judgment as a matter of law.” FED. R. CIV. P. 56(c). 

Prison officials violate the Eighth Amendment’s prohibition against cruel

and unusual punishment when they demonstrate deliberate indifference to a

prisoner’s serious medical needs, constituting an “unnecessary and wanton

infliction of pain.” Wilson v. Seiter, 501 U.S. 294, 297 (1991) (internal quotation

marks and citation omitted). A prison official acts with deliberate indifference

if he “knows of and disregards an excessive risk to inmate health or safety; the

official must both be aware of facts from which the inference could be drawn that

a substantial risk of serious harm exists, and he must also draw the inference.”

Farmer v. Brennan, 511 U.S. 825, 837 (1994). A mere disagreement with one’s

medical treatment is not sufficient to state a cause of action under § 1983.

Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991). Further, unsuccessful

medical treatment, negligence, or medical malpractice are insufficient to give

rise to a claim of deliberate indifference. Id.

The district court did not err in granting summary judgment because

Hensley and Martinez were not deliberately indifferent: Fife received surgery

on both of his feet; he was referred for evaluation of a possible corrective second

surgery for his leftfoot; he obtained custom orthopedic shoes to help alleviate his
No. 08-10062

3

condition; he was seen by the medical department personnel on numerous

occasions; and he received various pain medications. Given the extremely

limited authority of Hensley and Martinez to affect patient care directly, their

actions do not show they acted with deliberate indifference to Fife’s serious

medical needs. 

Neither did the district court err when it granted summary judgment in

favor of Dr. Luong because he was not deliberately indifferent either. Dr. Luong

saw Fife on a number of occasions and prescribed various medications for him.

Although Dr. Luong did not immediately refer Fife for corrective surgery and

initially refused to grant Fife a pass to wear his orthopedic shoes, the records

indicate that Dr. Luong justified his decisions on the basis of medical necessity.

Furthermore, Dr. Luong did eventually refer Fife for evaluation of possible

corrective surgery. To the extent that Dr. Luong’s medical opinions differed from

those of Fife or other medical providers, such a difference of opinion does not

give rise to a claim of deliberate indifference. See Varnado, 920 F.2d at 321;

Gobert v. Caldwell, 463 F.3d 339, 350 n. 32 (5th Cir. 2006).

AFFIRMED; MOTION DENIED.