IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-30157

Summary Calendar

IVORY LANE SIMON,

Plaintiff-Appellant

v.

JAMES LEBLANC; J.TIM MORGAN; DOCTOR KUPLESKY; DANIEL MARR;

JOHN DOE; JOAN DOE; XYZ INSURANCE COMPANY,

Defendants-Appellees

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 1:14-CV-2606

Before REAVLEY, SMITH, and HAYNES, Circuit Judges.

PER CURIAM:*

Ivory Lane Simon, Louisiana prisoner # 505008, filed a complaint under 

42 U.S.C. § 1983, alleging that the defendants were deliberately indifferent to 

his serious medical needs. Simon asserted that, following his transfer to Winn 

Correctional Center, the defendants would not permit him to continue taking 

previously prescribed medications for various ailments and instead prescribed 

 

* 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

December 7, 2015

Lyle W. Cayce

Clerk

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alternative, generic brands of the medications. He suggested that he could not 

take the generic brands because they possibly contained sulfa, to which he had 

an allergy that could cause symptoms of Stevens-Johnson Syndrome, and the 

defendants should have ascertained whether the medicines contained sulfa or 

allowed him to be treated by another doctor. Simon also asserted that he was 

warned that he would be written up for malingering if he initiated further sick 

calls related to his Stevens-Johnson Syndrome and was denied medical care in 

retaliation for complaining about his treatment. The district court dismissed 

Simon’s complaint for failure to state a claim under 28 U.S.C. §§ 1915(e)(2)(B) 

and 1915A, and, therefore, our review is de novo using the same standard that 

applies to dismissals pursuant to Federal Rule of Civil Procedure 12(b)(6). See 

Samford v. Dretke, 562 F.3d 674, 678 (5th Cir. 2009).

Simon’s allegations are insufficient to state a claim that the defendants 

were deliberately indifferent to a substantial risk of serious harm. See Farmer 

v. Brennan, 511 U.S. 825, 837 (1994). The refusal to provide medicine that was 

prescribed at another facility or by a different doctor does not rise to the level 

of deliberate indifference. See Stewart v. Murphy, 174 F.3d 530, 535 (5th Cir. 

1999). Furthermore, to the extent that Simon contests the decision to prescribe 

generic medicines instead of the medicines that he previously was prescribed, 

his dissatisfaction does not give rise to a claim under § 1983. See Varnado v. 

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

Simon otherwise has not alleged a claim of deliberate indifference. The

medical records do not reflect, and Simon did not allege in his complaint, that 

he was administered medications that contained sulfa or was required medical 

care for a resulting allergic reaction. Instead, he refused the medication that 

was recommended because it differed from that which he had been prescribed; 

thus, any ailments that he is experiencing are not attributable to medicines

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prescribed at Winn. To the extent that his ailments were treated by his prior

medications, he has not alleged facts to suggest that the defendants purposely 

refused to prescribe those medications for improper reasons; the physicians at 

Winn proposed to treat his conditions with generic versions of the medications, 

and his refusal to accept the medicines because of his disagreement with their

efficacy does not support a claim of deliberate indifference. See Varnado, 920 

F.2d at 321; Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir. 1997). 

Further, Simon has not alleged any facts to support that the defendants 

intentionally recommended erroneous treatment (e.g., deliberately prescribed 

medications with sulfa despite knowing that Simon was allergic) and, to the 

extent that the defendants prescribed generic medications without confirming 

whether they contained sulfa, that conduct, at most, is negligence, which is not 

actionable. See Varnado, 920 F.2d at 321. The defendants were not required 

to send Simon to another doctor or conduct further diagnostic tests. See Estelle 

v. Gamble, 429 U.S. 97, 107 (1976). Simon has not alleged any facts to suggest

that the defendants denied him medical treatment for a serious medical need 

at any time. The record instead establishes that, on the instances when Simon 

sought medical care, he resisted the recommended treatment. These facts do 

not prove a claim of deliberate indifference or retaliation. See Norton, 122 F.3d 

at 292; Jones v. Greninger, 188 F.3d 322, 324-25 (5th Cir. 1999).

AFFIRMED.

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