* 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should not be published and is not precedent except under the limited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. 07-60310

Summary Calendar

KEVIN RUSSELL,

Plaintiff–Appellant,

v.

KEITH IVANS, State Medical Director, in his individual and official capacities;

CORRECTIONAL MEDICAL SERVICES,

Defendants–Appellees.

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 4:04-CV-144

Before KING, DENNIS, and OWEN, Circuit Judges. 

PER CURIAM:*

Kevin Russell, Mississippi prisoner # K3887, filed the instant 42 U.S.C.

§ 1983 suit to seek redress for alleged acts of deliberate indifference to his

medical needs while incarcerated at the Mississippi State Penitentiary in

Parchman, Mississippi. Russell appeals the district court’s grant of summary

judgment in favor of the defendants. He has also filed a motion requesting that

additional medical records be disclosed for purposes of the appellate record.

United States Court of Appeals

Fifth Circuit

F I L E D

October 15, 2008

Charles R. Fulbruge III

Clerk
No. 07-60310

2

Russell argues that he received inadequate and inappropriate medical care

that caused him to suffer substantial harm. He specifically asserts that the

defendants failed to approve total elbow replacement surgery to treat his injured

left elbow, and that he was denied the opportunity to consult orthopedic

specialists for nearly four years. Russell also contends that the defendants did

not provide him with timely medical treatment; failed to comply with follow up

consultation requests; and disregarded recommendations from medical staff

about the most efficacious methods to treat his injury.

The defendants assert that we lack jurisdiction over this matter because

Russell failed to file a proper notice of appeal. Although we previously dismissed

Russell’s timely notice of appeal for want of prosecution, he subsequently cured

the defect that resulted in dismissal. Accordingly, we granted Russell’s motion

to reinstate his appeal. The defendants have not shown that the court’s

reinstatement decision was improper. See 5TH CIR. IOP to FED. R. APP. P. 27;

5TH CIR. R. 27.1.6. 

Our review of the record reveals no error in connection with the district

court’s grant of summary judgment in favor the defendants. See Cousin v.

Small, 325 F.3d 627, 637 (5th Cir. 2003); FED. R. CIV. P. 56(c). The record

evidence does not show that the defendants acted with deliberate indifference

with respectto Russell’s elbow injury. See Farmer v. Brennan, 511 U.S. 825, 837

(1994); Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993). The extensive

medical records demonstrate that Russell’s complaints were not ignored, he was

regularly seen by members of the medical staff and orthopedic specialists, and

he received treatment for his complaints in each instance. See Domino v. Tex.

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

has failed to show that any members of the medical staff actually recommended

total elbow replacement surgery, or thatthe denial of his orthopedic consultation

requests was more than a matter of medical judgment. See Estelle v. Gamble,

429 U.S. 97, 107 (1976).
No. 07-60310

3

Therefore, Russell’s allegations are merely disagreements with the type

of care that he was provided; Russell cannot state a § 1983 cause of action on

this basis. See Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991). To the

extent that Russell references or requests the opportunity to introduce evidence

that was not considered by the district court, we are not permitted to consider

that evidence on appellate review. See Theriot v. Parish of Jefferson, 185 F.3d

477, 491 n.26 (5th Cir. 1999).

Thus, Russell has failed to show any error in connection with the district

court’s judgment. Accordingly, that judgment is AFFIRMED. His motion for the

disclosure of additional medical records is DENIED.