* 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should not be published and is not precedent except under the limited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

August 22, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-30112

Summary Calendar

ROBERTO BAEZ

Plaintiff-Appellant

v.

IMMIGRATION AND NATURALIZATION SERVICE; ET AL

Defendants

ROSEMARY MELVILLE, District Director; JUAN A CAMPOS, Assistance

District Director; ASA HUTCHINSON, Commissioner of Immigration and

Naturalization Service; K KENDRICK, Warden -- Orleans Parish Prison;

DOCTOR CALDWELL; DOCTOR GAUTREAUX; DOCTOR DILEO;

RICHARD D INGLESE; UNIDENTIFIED PARTY 

Defendants-Appellees

Appeals from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:03-CV-1568

Before WIENER, GARZA, and BENAVIDES, Circuit Judges.

PER CURIAM:*
No. 06-30112

2

Roberto Baez appeals the district court’s summary judgment in favor of

Doctors Inglese, Caldwell, Dileo, Gautreaux, and Warden K. Kendrick of Orleans

Parish Prison (OPP), denying Baez’s claim that they were deliberately

indifferent to his serious medical needs. Baez’s motion for permission to file a

supplemental brief is granted. Baez argues for the first time on appeal that Dr.

Inglese’s certification that accompanied Baez’s medical records was not

notarized, was not a true affidavit as required by Fed. R. Civ. P. 56, and did not

satisfy the requirements for an unsworn declaration under 28 U.S.C. § 1746.

Because Baez failed to object to the admissibility of the medical records in the

district court, he has waived any objection to the admissibility of the records on

appeal. See BGHA, LLC v. City of Universal City, Texas, 340 F.3d 295, 299 (5th

Cir. 2003); see also Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d 646,

650 n.3 (5th Cir. 1992).

Baez argues that the district court erred in granting summary judgment

to the OPP physicians because there are genuine issues of material fact

concerning whether the medical records indicate that he had a nerve entrapment

and a hernia that required surgery and whether the pain medication prescribed

was sufficient to treat his pain. Baez argues that the physicians were

deliberately indifferent in that they did not make a good faith effort to contact

Baez’s previous physician, Dr. Howard Melton, who had recommended surgery;

they did not conduct tests or X-rays to determine whether he needed surgery;

they erroneously determined that he did not need surgery; and they delayed his

surgery and failed to prescribe adequate pain medication for his condition.

This court reviews de novo the district court’s grant of summary judgment.

Melton v. Teachers Ins. & Annuity Ass’n of America, 114 F.3d 557, 559 (5th Cir.

1997). Summary judgment is appropriate only where there is no genuine issue

of material fact and the moving party is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56(c); Clark v. America’s Favorite Chicken Co., 110 F.3d 295, 297

(5th Cir. 1997). 
No. 06-30112

3

Prison officials violate the constitutional 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). A prison official

acts with deliberate indifference “only if he knows that inmates face a

substantial risk of serious harm and disregards that risk by failing to take

reasonable measures to abate it.” Farmer v. Brennan, 511 U.S. 825, 847 (1994);

see also Reeves v. Collins, 27 F.3d 174, 176-77 (5th Cir. 1994). Unsuccessful

medical treatment, acts of negligence, neglect, or medical malpractice are

insufficient to give rise to a constitutional violation. Varnado v. Lynaugh, 920

F.2d 320, 321 (5th Cir. 1991). Disagreement with one's medical treatment is not

sufficient to state a cause of action under § 1983. Id. “Further, delay in medical

care can only constitute an Eighth Amendment violation if there has been

deliberate indifference, which results in substantial harm.” Mendoza v.

Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993).

Baez has not shown that the district court erred in granting summary

judgment in favor of the OPP physicians as he has not shown that there were

genuine issues of material fact that precluded summary judgment. The

undisputed evidence established that during the time Baez was incarcerated at

OPP, he received medical treatment and pain medication for his condition,

indicating that the physicians were not deliberately indifferent to his serious

medical needs. See Reeves, 27 F.3d at 176-77. The physicians’ prescription of

Ultram for Baez’s pain was reasonable given the OPP policy that narcotics could

not be prescribed, and the physicians increased the dosage when Baez

complained that the medication was not effective. That Baez ultimately had

surgery to repair a hernia after he was transferred to the Yazoo City facility

indicates at most that the OPP physicians were negligent and does not rise to

the level of a constitutional violation under § 1983. See Varnado, 920 F.2d at

321. Baez’s disagreement with the medical treatment provided by the OPP
No. 06-30112

4

physicians does not establish a constitutional claim under § 1983. See id.

Therefore, Baez has not shown thatthe district court erred in granting summary

judgment in favor of the OPP physicians as to his claim that they were

deliberately indifferent to his serious medical needs. See Farmer, 511 U.S. at

847; see also Reeves, 27 F.3d at 176-77.

Baez has filed a motion for appointment of counsel on appeal. Counsel will

be appointed in civil cases only in exceptional circumstances. Richardson v.

Henry, 902 F.2d 414, 417 (5th Cir. 1990). Baez has not shown that exceptional

circumstances warrant appointment of counsel on appeal. Therefore, his motion

is denied.

AFFIRMED; MOTION TO FILE SUPPLEMENTAL BRIEF GRANTED;

MOTION FOR APPOINTMENT OF COUNSEL DENIED.