* 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should not be published and is not precedent except under the limited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. 06-20156

Summary Calendar

JOHN CARL SUTTERLEY

Plaintiff-Appellant

v.

MORRIS, TDCJ Kitchen Capt; MURRAY, UTMB-Dr; HOBART,

Saw Manufacturer

Defendants-Appellees

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:04-CV-2102

Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.

PER CURIAM:*

John Carl Sutterley, federal prisoner # 41881-179 and formerly Texas

prisoner # 1201260, appeals the dismissal of his 42 U.S.C. § 1983 action against

Captain Florence Morris of the Texas Department of Criminal Justice, Dr. Jane

Murray of the University of Texas Medical Branch, and “Hobart (saw

United States Court of Appeals

Fifth Circuit

F I L E D

October 29, 2007

Charles R. Fulbruge III

Clerk
No. 06-20156

1Sutterley lists “Hobart (saw manufacturer)” as a defendant. Ostensibly

this is Hobart Corporation.

2Scanlan v. Texas A & M Univ., 343 F.3d 533, 536 (5th Cir. 2003).

3

Id.

4Hampton v. Oktibbeha County Sheriff Dept., 480 F.3d 358, 363 (5th Cir.

2007).

2

manufacturer).”1 The suit originates from injuries he sustained while cutting

meat atthe Pam Lychner State Jail. Sutterley alleges that, while cutting frozen

hamburger meat, some meat shavings became lodged under the meat he was

cutting, causing the meat to spin. The meat apparently hit the saw blade,

causing it to kick back. The blade severed two of Sutterley’s fingers at the joint.

The district court dismissed Sutterley’s complaint under Rule 12(b)(6) of

the Federal Rules of Civil Procedure on Eleventh Amendment sovereign

immunity and qualified immunity grounds. Sutterley argues that the

defendants are notimmune from suit because they were negligentin their duties

and because they subjected him to unnecessary, wanton infliction of pain.

We review de novo a district court’s ruling on a Rule 12(b)(6) motion,

“taking the allegations ofthe complaint to be true.”2 A Rule 12(b)(6) motion may

only be granted “if it appears beyond doubt that the plaintiff can prove no set of

facts in support of his claim that would entitle him to relief.”3

This court engages in a two pronged analysis to determine whether a

government official is entitled to qualified immunity. The first prong asks

“whether the plaintiff has alleged a violation of a constitutional right and, if so,

[second] whether the defendant’s behavior was objectively reasonable under

clearly established law at the time the conduct occurred.”4

“In order to show that his medical care violated the Eighth Amendment,

[an inmate] must allege that prison officials were deliberately indifferent to his
No. 06-20156

5Norton v. Dimazana, 122 F.3d 286, 291 (5th Cir. 1997).

6See id. at 292 (“Disagreement with medical treatment does not state a

claim for Eighth Amendment indifference to medical needs.”); Mendoza v.

Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993) (“Succinctly stated, negligent medical

care does not constitute a valid section 1983 claim.”); Varnado v. Lynaugh, 920

F.2d 320, 321 (5th Cir. 1991) (“Unsuccessful medicaltreatment does not give rise

to a § 1983 cause of action. Nor does ‘[m]ere negligence, neglect or medical

malpractice.’” (quoting Fielder v. Bosshard, 590 F.2d 105, 107 (5th Cir. 1979)).

7Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993) (quoting Price v.

Digital Equip. Co., 846 F.2d 1026, 1028 (5th Cir. 1988)).

8See id.

3

serious medical needs.”5 With regard to Dr. Murray, Sutterley has, at most,

asserted allegations of unsuccessful treatment, negligence, medical malpractice,

or a difference of opinion as to treatment, none of which gives rise to a

constitutional violation.6 Because Sutterley failed to allege a violation of a

constitutional right, Dr. Murray is entitled to qualified immunity.

Sutterley’s brief does not argue that the district court erred by ruling that

the Eleventh Amendment barred his § 1983 claims against the defendants in

their official capacity. Nor does Sutterley address the district court’s ruling that

Hobart was not liable under § 1983 as a private party. Although this court

construes a pro se litigant’s brief liberally, we “also require that arguments must

be briefed to be preserved.”7 Accordingly these issues are abandoned.8

Similarly, Sutterley abandoned his claims against Captain Morris,

although itis a closer question. Sutterley’s brief fails to mention Captain Morris

or to discuss directly the district court’s ruling. Rather, Sutterley merely recites

the allegations that Captain Morris violated his constitutional rights by

providing “inadequate” training on the use of the saw that cut him. He does not,

however, explain how the district court’s analysis erred. He does not foot his

objection on the district court’s legal construction of his claim, and the bald

allegation that there are sufficient facts to survive a 12(b)(6) motion without, at
No. 06-20156

9Texas Commercial Energy v.TXU Energy, Inc., 413 F.3d 503, 510 (5th Cir.

2005).

4

a minimum, identifying what alleged facts contradict the district court’s

conclusion is insufficient to satisfy Rule 28.

Finally, to the extent that Sutterley’s allegations concerning other

unnamed prison employees’ mishandling of his severed digit are an attempt to

raise claims against additional defendants, we do not consider them because

they were not raised below.9

Accordingly, we AFFIRM.