### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-40812 Summary Calendar

CHARLES RICKY CHOYCE, JR., Plaintiff-Appellant

v. MEDICAL SUPERVISOR ADAM VELEZ, Practice Manager a t T elford Unit; REGINALDO F. STANELY, MD at Telford U n i t ; CLAIRE T. RUSSELL, Mid L evel Practitioner at Telford Unit; TONYA TRAYLOR, Nurse Clinician III a t Telford Unit, Defendants-Appellees

Appeal from the United States District Court for the Eastern District of Texas USDC No. 5:10-CV-181

Before KING, JOLLY, and GRAVES, Circuit Judges. PER CURIAM: * Charles Ricky Choyce, Jr., Texas prisoner # 690391, appeals the district court’s dismissal of his 42 U.S.C. § 1983 complaint upon the defendants’ motion for summary judgment. Choyce alleged that the defendants failed to meet his serious medical needs with regard to his distal rectal ulcerative proctitis, a foot U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D March 22 , 20 12 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 11-40812 Document: 00511796741 Page: 1 Date Filed: 03/22/2012No. 11-40812

fungus, back, hip, and leg pain, a lump under his scalp, and the side effects of Nortriptyline, an anti-depressant medication. This court reviews de novo a grant of summary judgme n t , applying the

same legal standards that a district court appli e s . Cuadra v. Houston Indep. School Dist. , 6 2 6 F

. 3 d 808, 812 (5th Cir. 2010), cert denied , 131 S. Ct. 2972 (2011). Summary judgment is appropriate if the record discloses “that there is

no genuine dispute as t o a n y m a t erial fact and the movant is entitled to judgment as a matter of law.” F E D
. R. C IV
. P. 56(a) (2010). The fac t s a nd all inferences are viewed in favor of the nonmoving party. Cuadra , 626 F.3d at 812. H o wever, the nonmovant cannot defeat summary judgment with conclusi o n a l allegations or unsub s tantiated assertions. Little v. Liquid Air Corp. , 37 F.3d 1069, 1075 (5th Cir. 1994). To the extent Choyce sued the defendants in their official c a p a c i ties for monetary damages, the district court correctly determined that the Eleventh Amendment barred such claims. See Hughes v. Savell , 902 F.2d 376, 377-78 (5th Cir. 1990). The district court similarly did not err in finding that the defendants were entitled to qualified immunity insofar as Choyce was suing them in t h eir individual capacities. Qualified i m m u nity ge n e r ally s hi el d s gove rn ment officials performing discretionary functions, such as the administration of medical care, from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a r e a s o n ab l e p e r s on would have known. See Easter v. Powell , 467 F.3d 459, 462 (5th Cir. 2006). “A prison official violates the Eighth Amendment’s prohibition against cruel and unusual punishment when hi s c onduct demonstrates deliberate indifference to a prisoner’s serious medical need s , constituting an unnecessary and wanton infliction of pain.” Id. at 463 (internal quo t a t i o n marks and footnoted citation omitted). The mere delay of medical care can constitute an Eighth Amendment

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violation only if there has been deliberate indifference that results in substantial harm. See id. On appeal, Choyce challenges the district court’s findings, asserting that t he defendants delayed, denied, deprived, and refused medical c a r e a n d treatment of his referenced medical issues. However, his medical records show t h a t h e r e ceived an abundance of medical care, and he has not shown any intentional delay or refusal t o p r o vi d e him with medical treatment for his proctitis or for any o t h e r medical condition for which he requested treatment. In light of the medical information in the summary judgment evidence, Choyce has not shown that t h e d e f endants were deliberately indifferent to his serious medical needs. At most, he has established a disagreement with his treatment

or unsuccessful treatment , neither of which amounts to a constitutional violation. See Varnado v. Lynaugh , 920 F.2d 320, 321 (5th Cir. 199 1). Insofar

as he alleges that he should have received further treatment , “[t]he decision

w h e t h e r to provide additional treatment is a classic example of a matter f o r medical judgment.” Gobert v. Caldwell , 463 F.3d 339, 346 (5th Cir. 2006). Accordingly, the district court did not err in finding that the defendants w e re entitled to qualified immunity and in granting their m otion for summary judgment. Next, Choyce argue s t hat the district court erred in not allowing him to proceed anonymously so as to protect his privacy, health, and safety. However, Choyce filed the instant complaint using his name rather than John Doe, and he did not request to proceed anonymously. In addition, Choyce argues that the trial court should have investigated his claim and compiled evidence for him. This argument is nonsensical, as it is counsel’s duty to i nv e s t igate and compile evidence; the court must remain strictly impartial. See United States v. Saenz , 134 F.3d 697, 702 (5th Cir. 1998); Ulmer v. Chancellor , 691 F.2d 209, 213 (5th Cir. 198 2).

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Choyce next argues that the district court abused its discretion by failing to provide him with an expert witness and a physical and mental examination. The district court does not have authority to appoint an expert witness under 28 U.S.C. § 1915 (the in form a p a u p e r i s statute). Pedraza v. Jones , 71 F.3d 194, 197 (5th Cir. 1995). Although the district court may appoint an expert witness under F E D
. R. E V I D
. 706(a), the rule does not provide for government funding of such a witness. See F E D
. R. E V I D
. 706(c). As for a p hy s i c a l or mental examination, neither party filed a motion for an examination of Choyce. Moreover, neither Choyce’s physical or mental state was in controversy, as the defendants did not deny that he suffered from the asserted medical issues, and Choyce did not claim any mental issues. See F E D
. R. C IV
. P. 35; A c osta v. Tenneco Oil Co. , 913 F.2d 205, 210 (5th Cir. 1990). The d i s t r i c t c o u rt did not abuse its discretion in failing to sua sponte order an examination of Choyce. Finally, C h o y ce asserts that the defendants falsified and fabricated documents and statements and knowingly used perjured testimo ny and false evidence. He does not identify the falsified or fabri c a t e d documents and statements, the perjured testimony, or the false evidence to which he refers. The assertion is therefore wholly conclusory. The judgment of the district court is AFFIRMED. Choyce’s motion for the appointment of counsel is DENIED.

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