IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-20257

Summary Calendar

DONALD LEMPAR,

Plaintiff-Appellant

v.

BRAD LIVINGSTON, Executive Director, Texas Department of Criminal 

Justice; ALLEN HIGHTOWER, Executive Director, Texas Department of 

Criminal Justice; GLENDA ADAMS, M.D., North Region Medical Director, 

University of Texas Medical Branch - C.M.H.C. Division; BOBBY VINCENT, 

Medical Director, Estelle Unit; MYRA WALKER, Chief of the Office of 

Professional Services; GUY SMITH, in his individual capacity; OWEN 

MURRAY, Vice President, University of Texas Medical Branch; SONIE 

MANGUM, Practice Manager Huntsville Unit, University of Texas Medical 

Branch; ROBERT DALECKI, Practice Manager Huntsville Unit, University of 

Texas Medical Branch; JAMIE WILLIAMS, Practice Manager Estelle Unit, 

University of Texas Medical Branch; ERNESTINE JUYLE, Primary Care 

Provider, Estelle and Huntsville Units; DENNIS GORE, General Surgeon; 

VALERIE BAUER, Colon/Rectal Surgeon; INTERN GARZA, Surgical Intern; 

KATHERINE PEARSON, Nurse Practitioner; D. A. RUBY, Nurse Practioner; 

CHARLES NAGEL, Physicians Assistant; CHERYL EGAN, Physicians 

Assistant; LESTER FINDLEY, Nurse, Estelle Unit, University of Texas 

Medical Branch; LISA HORTON, Nurse, Estelle Unit, University of Texas 

Medical Branch; MARTIN OAKLEY, Nurse, University of Texas Medical 

Branch; CAROLYN HICKS, Nurse, Huntsville Unit, University of Texas 

Medical Branch; TSUNG-LIN ROGER TSAI, Resident Doctor; SERGEANT 

DONNA CLEMENT, Security Officer,

Defendants-Appellees

United States Court of Appeals

Fifth Circuit

FILED

July 17, 2015

Lyle W. Cayce

Clerk

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No. 14-20257

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Appeals from the United States District Court

for the Southern District of Texas

USDC No. 4:10-CV-2983

Before PRADO, OWEN, and GRAVES, Circuit Judges.

PER CURIAM:*

Donald Lempar, Texas prisoner # 1284244, appeals the summary 

judgment dismissal of his 42 U.S.C. § 1983 complaint alleging deliberate 

indifference to his serious medical needs. He contends that he received 

constitutionally inadequate treatment for an anal fistula. We affirm.

We review a district court’s ruling on summary judgment de novo, 

employing the same standard used by the district court. McFaul v. Venezuela, 

684 F.3d 564, 571 (5th Cir. 2012). A district court “shall grant summary 

judgment if the movant shows that there is no genuine dispute as to any 

material fact and that the movant is entitled to judgment as a matter of law.” 

FED. R. CIV. P. 56(a). Where, as in the instant case, the appellees have raised 

the issue of qualified immunity, the typical summary judgment burden of proof 

is altered in that once the defense is pleaded by an official, the burden shifts 

to the plaintiff to rebut the defense by establishing a genuine fact issue as to 

whether the official’s allegedly wrongful conduct violated clearly established 

federal law. Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010). It is the 

plaintiff’s burden to negate qualified immunity; however, all inferences are 

drawn in his favor. Id. 

 

* 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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The defense of qualified immunity has two prongs: (1) whether an 

official’s conduct violated a plaintiff’s constitutional rights and (2) whether that 

right was clearly established at the time of the violation. Id. As an inmate, 

Lempar had a clearly established Eighth Amendment right not to be denied,

by deliberate indifference, attention to his serious medical needs. See Gobert 

v. Caldwell, 463 F.3d 339, 345 (5th Cir. 2006). A prison official acts with 

deliberate indifference only if “the official knows of and disregards an excessive 

risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994) 

(emphasis in original); see Reeves v. Collins, 27 F.3d 174, 176-77 (5th Cir. 1994). 

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

2001) (internal quotation marks and citation omitted).

Lempar’s argument that the district court misapplied the summary 

judgment standard is without merit. Our exhaustive review of the medical 

evidence in this case establishes that the appellees were not deliberately 

indifferent to Lempar’s serious medical needs. Lempar’s complaint that his 

course of treatment fell below the applicable standard of care is not supported 

by the record evidence. His subjective belief that he is suffering from a complex 

anal fistula with multiple tracts that requires specialized treatment and 

reparative surgery is not borne out by the medical evidence.

There is no disputed fact question that, when resolved in Lempar’s favor, 

rises to the level of deliberate indifference. Not only was Lempar consistently 

treated for his conditions, the appellees discussed his care with his family, in 

person and via letters, and referred him to a board-certified colorectal surgeon, 

who after two exploratory surgeries found no evidence that he was suffering 

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from a complex anal fistula or that he required specialized treatment. 

Lempar’s complaints about the quality of wound care, the types of dressings 

used, and the availability of sitz baths constitute a disagreement over the 

treatment he received, which does not rise to the level of deliberate 

indifference. See Gobert, 463 F.3d at 346. Insofar as Lempar contends that 

evidence of his noncompliance with certain of the medical recommendations 

has been fabricated or falsified by the appellees, these are conclusional

allegations and unsubstantiated assertions, which do not create a fact issue on 

summary judgment. See Warfield v. Byron, 436 F.3d 551, 557 (5th Cir. 2006). 

As there is no evidence of a constitutional violation, we uphold the 

district court’s determination that those appellees sued in their individual 

capacities were entitled to qualified immunity. See Brown, 623 F.3d at 253. 

Those appellees sued in their official capacities similarly have no liability and 

were entitled to summary judgment. See Mayfield v. Texas Dep’t of Criminal 

Justice, 529 F.3d 599, 604 (5th Cir. 2008). 

AFFIRMED; MOTION TO FILE SUPPLEMENTAL BRIEF DENIED. 

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