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. 09-40223

Summary Calendar

DON WAYNE COOPER,

Plaintiff - Appellant

v.

GARY JOHNSON; DOUGLAS DRETKE; RICHARD TRINCI; MICHAEL J

MEGNA; CHUKWUMA ANADUAKA, Doctor; JUDY NORRIS, The Director

of Quality Services/Risk Management, UTMB-CMCH, 

Defendants - Appellees

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 3:04-cv-00553

Before KING, DAVIS, and STEWART, Circuit Judges.

PER CURIAM:*

Don Wayne Cooper (“Cooper”), a federal prisoner proceeding pro se,

appeals the district court’s grant of summary judgment to defendants

United States Court of Appeals

Fifth Circuit

F I L E D

December 1, 2009

Charles R. Fulbruge III

Clerk
No. 09-40223

2

Chukwuma Anaduaka (“Anaduaka”) and Judy Norris (“Norris”) on his 42 U.S.C.

§ 1983 claims. We AFFIRM.

I. BACKGROUND

Cooper is incarcerated at the Wayne Scott Unit within the Texas

Department of Criminal Justice Correctional Institutions Division (“TDCJ”). 

During the relevant time period, Anaduaka was a Practice Manager for the

University of Texas Medical Branch-Correctional Managed Health Care

(“UTMB-CMHC”). In this non-physician role, he met with inmates regarding

their UTMB-CMHC medical procedures and supervised support staff to

determine whether the UTMB-CMHC polices were being followed. Norris was

the Director of Utilization Management for UTMB-CMHC, where she reviewed

inmate requests for specialty medical services. 

In 1997, while Cooper was serving his sentence, his left ear was operated

on twice to remove polyps. After his surgery, Cooper was diagnosed with

tinnitus in his left ear but his right ear was still functional. He was released on

parole in 1999. While on parole, a private physician fitted him with a hearing

aid to alleviate the loud ringing caused by the tinnitus. 

In December 2001, Cooper was imprisoned for parole violations. In late

2002, his hearing aid broke and could not be repaired. Cooper then had a third

surgery on his left ear in January 2003 to repair a hole in his eardrum. After the

third surgery he developed several infections in his left ear during 2003. As

Director of Utilization Management, Norris reviewed Cooper’s medical

complaints and referred them for the required specialized treatment and

surgery. 

Cooper requested a hearing aid to relieve the tinnitus in his left ear. In

July 2003, an audiology exam performed on Cooper showed that he did not meet
No. 09-40223

 In September 2007, after the appeal was docketed but before we rendered decision, 1

a second audiology exam performed on Cooper showed that, while his hearing had worsened

slightly since the 2003 audiology exam, he still did not qualify for the TDCJ Hearing Aid

Program. 

3

the criteria for a hearing aid because his hearing was still functional in both

ears. Pursuant to TDCJ policy, Cooper filed grievances regarding the decision

not to issue a hearing aid. The grievances were dismissed, in part because

Cooper’s hearing was functional and he had received medical treatment

addressing his numerous ear infections. Cooper also filed an informal request

with Anaduaka, pursuant to TDCJ policy, to discuss his request for a hearing aid

and for cosmetic surgery on his left ear. Anaduaka does not recall meeting with

Cooper. Cooper avers, however, that Anaduaka informed him that he was not

eligible for the hearing aid because he did not meet the TDCJ criteria. 

In September 2004, Cooper filed suit pursuant to 42 U.S.C. § 1983, seeking

compensatory and punitive damages, reconstructive surgery, and a hearing aid.

Cooper alleges that Defendants were deliberately indifferent to his serious

medical needs when they refused to give him a hearing aid to relieve the tinnitus

in his left ear, in violation of the Eighth Amendment. He contends that he was

denied a hearing aid because TDCJ policy requires impaired hearing in both

ears. He further alleges that the denial of a hearing aid was solely a financial

decision and constitutes deliberate indifference to his serious medical needs.

On November 21, 2006, the district court dismissed the case as frivolous.

Cooper timely appealed. We affirmed the district court in part, but remanded 1

the non-frivolous issue regarding “whether the provision of a hearing aid is a

serious medical need and whether the respondents were deliberately indifferent

to this need.” Cooper v. Johnson, 255 F. App’x 891, 892 (5th Cir. 2007) (per

curiam). On remand, Anaduaka and Norris were ordered to file an answer; the
No. 09-40223

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remaining defendants were dismissed. In their answer, Anaduaka and Norris

pleaded qualified immunity and Eleventh Amendment immunity as affirmative

defenses. The district court ordered defendants to file a dispositive motion on

the issue of immunity. Anaduaka and Norris then filed a motion for summary

judgment. The district court granted the motion on February 3, 2009. Cooper

appeals this ruling.

II. DISCUSSION

We review a district court’s grant of summary judgment de novo, applying

the same standards as the district court. Riverwood Int’l Corp. v. Employers Ins.

of Wausau, 420 F.3d 378, 382 (5th Cir. 2005). Summary judgment is appropriate

“if the pleadings, the discovery and disclosure materials on file, and any

affidavits show 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). The

moving party has the burden of demonstrating that there are no genuine issues

of material fact in dispute. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). We

“view the evidence in the light most favorable to the nonmovant, drawing all

reasonable inferences in the nonmovant’s favor.” Riverwood, 420 F.3d at 382

(citation omitted).

Section 1983 permits a private right of action for violations of federal law

by those acting under the color of state law. 42 U.S.C. § 1983. Deliberate

indifference to prisoners’ serious medical needs violates the Eighth Amendment

prohibition against cruel and unusual punishment and states a claim under §

1983. Estelle v. Gamble, 429 U.S. 97 (1976); Harris v. Hegman, 198 F.3d 153,

159 (5th Cir. 1999). To show the constitutional injury alleged here, Cooper must

show, at a minimum, that Anaduaka and Norris exhibited deliberate
No. 09-40223

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indifference to his serious medical needs. Wilson v. Seiter, 501 U.S. 294, 297

(1991). 

A prison official is not liable for the denial of medical treatment to a

prisoner under the deliberate indifference standard unless the official knows of

and disregards an excessive risk to inmate health or safety. Farmer v. Brennan,

511 U.S. 825, 837 (1994); Reeves v. Collins, 27 F.3d 174 (5th Cir. 1994).

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

Texas Dep’t of Crim. Justice, 239 F.3d 752, 756 (5th Cir. 2001). A defendant’s

conduct must rise “to the level of egregious conduct.” Gobert v. Caldwell, 463

F.3d 339, 351 (5th Cir. 2006). Cooper must raise a fact issue as to whether

prison officials “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.” Johnson v. Treen, 759

F.2d 1236, 1238 (5th Cir. 1985). An inmate’s disagreement with medical

treatment does not evince deliberate indifference to his serious medical needs.

See Gobert, 463 F.3d at 346. 

In this case, the evidence demonstrates that neither Anaduaka nor Norris

were deliberately indifferent to Cooper’s serious medical needs. After he was

incarcerated in 2001, Cooper received numerous treatments for ear infections

and other ailments related to his left ear. Norris, as Director of Utilization

Management, reviewed and approved Cooper’s requests for specialized ear, nose,

and throat services and referred him for the treatments. The 2003 audiological

examination revealed that Cooper’s hearing was still functional in both ears

despite the tinnitus; therefore, he was not eligible for a hearing aid. 

Particularly in light of the test results, the evidence fails to demonstrate that

Norris exhibited wanton disregard of Cooper’s needs. Cf. Taylor v. Turner, 884
No. 09-40223

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F.2d 1088, 1090 (8th Cir. 1989) (no deliberate indifference where prisoner

received audiological evaluation for hearing impairment and was denied hearing

aid). Moreover, Cooper wrote to Anaduaka as part of the grievance process

regarding the denial of aid. As Practice Manager, Anaduaka had no authority

to diagnose Cooper’s medical condition or to determine whether Cooper could

receive a hearing aid. Instead, his role was to review the medical record and

explain application of UTMB-CMHC’s policies to inmates. The record reflects

that he fulfilled this duty. As with Norris, the evidence fails to demonstrate that

Anaduaka exhibited wanton disregard of Cooper’s needs.

III. CONCLUSION

For all the foregoing reasons, we affirm the district court.