* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

February 7, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-11500

Summary Calendar

KEITH EDWARD NUNLEY,

Plaintiff-Appellant,

versus

PAUL MILLS, Doctor,

Defendant-Appellee.

--------------------

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:04-CV-2515

--------------------

Before REAVLEY, BARKSDALE and STEWART, Circuit Judges.

PER CURIAM:*

Keith Edward Nunley, Texas prisoner # 587076, appeals the

dismissal of his 42 U.S.C. § 1983 suit against Dr. Paul Mills. 

Nunley contends that Dr. Mills denied him adequate medical care

in violation of the Eighth Amendment and retaliated against him

for filing grievances. Finding no error, we affirm. 

Government officials acting within their discretionary

authority are immune from civil liability for damages if their

conduct does not violate clearly established constitutional

rights of which a reasonable person would have known. Flores v.
No. 05-11500

-2-

City of Palacios, 381 F.3d 391, 393-94 (5th Cir. 2004). 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). In order to demonstrate retaliation in

violation of a constitutional right, a prisoner must show (1) the

existence of a constitutional right, (2) the defendant’s intent

to retaliate against the prisoner for exercising that right,

(3) a retaliatory adverse act, and (4) causation. McDonald v.

Steward, 132 F.3d 225, 231 (5th Cir. 1998). 

We review a dismissal of a prisoner civil rights claim as

frivolous under 42 U.S.C. § 1915A de novo. See Ruiz v. United

States, 160 F.3d 273, 275 (5th Cir. 1998). We review a summary

judgment de novo under the familiar standard set out in FED.

R. CIV. P. 56. Cousin v. Small, 325 F.3d 627, 637 (5th Cir.

2003). 

With respect to Nunley’s Eighth Amendment claim that Dr.

Mills prescribed the wrong medication for his hemorrhoids, at

best, Nunley has stated a claim of negligence, malpractice, or

disagreement with treatment, which will not support a finding of

deliberate indifference under the Eighth Amendment. See Varnado

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

district court correctly dismissed this claim as frivolous. See
No. 05-11500

-3-

Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999) (a claim is

frivolous if it lacks “an arguable basis in law or fact.”)

We likewise find no error regarding the dismissal of

Nunley’s other claims of Eighth Amendment deliberate indifference

and retaliation. Nunley contends that Dr. Mills reassigned him

to an upper bunk following a confrontation on November 14, 2003,

repeatedly refused to assign him to a low bunk, refused to

prescribe a cane, denied him various medications, including

Anusol suppositories, Ibuprofen, fungal medication, and

antiobiotic cream, and took away his crutches. 

With respect to the November 2003 bunk reassignment, the

uncontroverted affidavits of Michael Searcy and Dr. Bowers show

that the reassignment was made by security personnel and not by

Dr. Mills. Nunley’s assertions are without merit.

As for the complaints regarding assignment to a low bunk and

Nunley’s requests for a cane, the medical records and affidavits

show that a low bunk assignment and cane were not medically

necessary until January 2004. With respect to the removal of the

crutches, Dr. Bowers opined that crutches were never necessary

and, one month prior to their removal, a physician’s assistant

recommended weaning Nunley off them. As for discontinuation of

the Ibuprofen, Nunley was repeatedly given prescriptions for high

dosages of Ibuprofen which, according to Dr. Bowers, must be

monitored and may cause stomach problems with long-term usage. 

Beyond speculation, Nunley has offered nothing to show that any
No. 05-11500

-4-

of Dr. Mills’s actions were either retaliatory or exhibited a

deliberate indifference to a serious medical need. Rather, the

records show that Nunley was seen often by medical personnel for

a variety of ailments and was afforded treatment. 

Nunley also contends that Dr. Mills denied him medical care

and retaliated against him by rescheduling an appointment. There

is nothing to suggest that the eight-day delay was anything other

than a routine rescheduling and no indication that it resulted in

any deprivation to Nunley. He also argues that Dr. Mills ordered

that he not be seen by any other physician. However, there is no

evidence that this order caused the denial of any medical

treatment or any other harm to Nunley. 

Nunley complains that Dr. Mills refused to prescribe a foot

cream and an antibiotic cream. Again, Nunley has offered no

evidence that Dr. Mills was motivated by anything other than

medical judgment regarding the proper course of treatment. 

Finally, Nunley does not challenge the dismissal of the

University of Texas Medical Branch on the basis of Eleventh

Amendment immunity. Accordingly, he has abandoned that issue. 

See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). 

For the foregoing reasons, the judgment of the district

court is AFFIRMED.