IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-20800

Summary Calendar

MICHAEL ARTHUR MCGIFFIN,

Plaintiff-Appellant

v.

JOSEPH M. CURRY, RA, In His Individual and Official Capacities; JUSTIN

GREEN, MD, In His Individual and Official Capacities,

Defendants-Appellees

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:07-CV-1179

Before JOLLY, GARZA and STEWART, Circuit Judges.

PER CURIAM:

*

Michael Arthur McGiffin, Texas prisoner # 1320384, appeals the district

court’s grant of summary judgment in favor of Joseph M. Curry, Physician’s

Assistant, and Dr. Justin Green, holding them protected by qualified immunity

from his civil rights suit seeking monetary damages. McGiffin alleged that the

defendants were deliberately indifferent to his serious medical needs in that

United States Court of Appeals

Fifth Circuit

F I L E D

November 17, 2010

Lyle W. Cayce

Clerk

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.

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No. 09-20800

they did not provide adequate treatment for his urological problem and they did

not provide him catheters or a dilation tool.

Although McGiffin lists as his first issue on appeal that the district court

abused its discretion in denying his motions for the appointment of counsel, he

has provided no argument on the issue. When an appellant fails to identify any

error in the district court’s analysis, it is the same as if the appellant had not

appealed that issue. Brinkmann v. Dallas County Sheriff Abner, 813 F.2d 744,

748 (5th Cir. 1987). Although pro se briefs are afforded liberal construction,

Haines v. Kerner, 404 U.S. 519, 520 (1972), arguments must be briefed in order

to be preserved. Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). McGiffin

has abandoned any challenge to the district court’s denial of his motions for the

appointment of counsel by failing to brief the issue. See id.

McGiffin contends that the district court abused its discretion in denying

his request to appoint Chester W. Ingram as a medical expert in the case. A

district court has the discretion to appoint an expert witness. Fugitt v. Jones,

549 F.2d 1001, 1006 (5th Cir. 1977); FED. R. EVID. 706. McGiffin has not shown

that the district court abused its discretion in denying his motion to appoint

Ingram as an expert because he has not made any showing that Ingram’s

testimony would have aided the court. See Hannah v. United States, 523 F.3d

597, 600 (5th Cir. 2008).

McGiffin challenges the district court’s grant of summary judgment in

favor of Curry and Dr. Green and argues that they were not entitled to qualified

immunity. McGiffin argues that Dr. Green disregarded his e-mails and would

not treat him when McGiffin asked Dr. Green to dilate his urethra. McGiffin

argues that Curry refused to provide urethral dilation treatment or the means

for him to self-dilate in violation of his Eighth Amendment rights.

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

the same standards as the district court. Hill v. Carroll County, Miss., 587 F.3d

230, 233 (5th Cir. 2009). Summary judgment should be granted where the

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record shows “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)(2). This

court views the disputed facts and inferences in the light most favorable to the

non-moving party. Hill, 587 F.3d at 233.

“Qualified immunity protects government officials ‘from liability for civil

damages insofar as their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would have known.’” Lytle

v. Bexar County, Tex., 560 F.3d 404, 409 (5th Cir. 2009) (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)), cert. denied, 130 S. Ct. 1896 (2010).

Whether a government official is entitled to qualified immunity for an alleged

constitutional violation is determined by the two-step analysis set forth in

Saucier v. Katz, 533 U.S. 194 (2001), overruled in part by Pearson v. Callahan,

129 S. Ct. 808 (2009). Lytle, 560 F.3d at 409. The threshold constitutional

violation question is “whether, taking the facts in the light most favorable to the

plaintiff, the officer’s alleged conduct violated a constitutional right.” Id. at 410

(citing Saucier, 533 U.S. at 201).

“Deliberate indifference is an extremely high standard to meet.” Domino

v. Texas. Dep’t of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001). The

plaintiff must establish that the defendants “refused to treat him, ignored his

complaints, intentionally treated him incorrectly, or engaged in any similar

conduct that would clearly evince a wanton disregard for any serious medical

needs.” Id. (internal quotation marks and citation omitted). Thus, neither an

incorrect diagnosis nor the failure to alleviate a significant risk that an official

should have perceived but did not will be sufficient to establish deliberate

indifference. See id. Similarly, unsuccessful treatment, medical malpractice,

and acts of negligence do not constitute deliberate indifference; nor does a

prisoner’s disagreement with his medical treatment, absent exceptional

circumstances. See Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006).

“Medical records of sick calls, examinations, diagnoses, and medications may

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rebut an inmate’s allegations of deliberate indifference.” Banuelos v.

McFarland, 41 F.3d 232, 235 (5th Cir. 1995).

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

judgment for Curry and Dr. Green on his claims of deliberate indifference to his

serious medical needs. As the district court reasoned, McGiffin’s arguments

amount to mere disagreement with the “implicit determinations . . . that

[McGiffin] did not necessarily need urethral dilation or did not need it

immediately.” Such disagreement does not constitute deliberate indifference.

See Gobert, 463 F.3d at 346. Although there was a lengthy delay before McGiffin

received catheters, he has not shown that a fact issue exists on the issues

whether the delay was due to the deliberate indifference of Curry or Dr. Green

or that the delay resulted in substantial harm. See Mendoza v. Lynaugh, 989

F.2d 191, 195 (5th Cir. 1993). At most, the delays or inadequate treatment

constitute negligence, which does not rise to the level of deliberate indifference.

See Stewart v. Murphy, 174 F.3d 530, 534 (5th Cir.1999). McGiffin’s allegations

that Curry made unprofessional remarks to him during treatment are not

actionable. See Calhoun v. Hargrove, 312 F.3d 730, 734 (5th Cir. 2002) (holding

that verbal abuse by prison guard does not amount to a constitutional violation).

McGiffin has not shown that the conduct of Curry and Dr. Green violated

a constitutional right. Therefore, he fails to show that the defendants were not

entitled to qualified immunity. See Lytle, 560 F.3d at 410.

AFFIRMED.

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