IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-40849

Summary Calendar

MARK GRANT,

Plaintiff-Appellant

v.

PHYSICIAN ASSISTANTDAVID FORTNER;LIEUTENANTCORRECTIONAL

OFFICER KIMBERLY J. PENTL; WARDEN 1 RICHARD A. MORRIS;

LIEUTENANT V. L. ALLEN; PROGRAM SUPERVISOR AMY D. JONES;

JAMIE WILLIAMS; DENISE BOX,

Defendants-Appellees

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 6:10-CV-447

Before SMITH, PRADO, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Mark Grant, Texas prisoner # 807219, appeals the district court’s grant

of summary judgment and dismissal of his 42 U.S.C. § 1983 action and the

denial of his motion for appointment of counsel. Grant argues that physician’s

assistant David Fortner violated Grant’s Eighth Amendment rights when

Fortner discontinued Grant’s prescription for morphine without weaning Grant

United States Court of Appeals

Fifth Circuit

F I L E D

August 27, 2012

Lyle W. Cayce

Clerk

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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No. 11-40849

off of this drug. The district court held that Fortner was entitled to qualified

immunity in his individual capacity and Eleventh Amendment immunity in his

official capacity. Grant does not challenge the latter finding, nor does he

challenge the district court’s prior ruling dismissing his claims against the other

defendants. Accordingly, he has abandoned such issues. See Yohey v. Collins,

985 F.2d 222, 224–25 (5th Cir. 1993).

We review a grant of summary judgment de novo, using the same standard

as that employed by the district court. Carnaby v. City of Houston, 636 F.3d 183,

187 (5th Cir. 2011) (citation omitted). When an official pleads qualified

immunity as a defense, this alters the summary judgment burden of proof by

shifting it to the plaintiff “who must rebut the defense by establishing a genuine

fact issue as to whether the official’s allegedly wrongful conduct violated clearly

established law.” Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010) (citation

omitted), cert. denied, 131 S. Ct. 2932 (2011).

Prison officials violate the Eighth Amendment’s prohibition against cruel

and unusual punishment when they demonstrate deliberate indifference to a

prisoner’s serious medical needs, constituting an “unnecessary and wanton

infliction of pain . . . in their response to the prisoner’s needs or by prison guards

in intentionally denying or delaying access to medical care or intentionally

interfering with the treatment once prescribed.” See Estelle v. Gamble, 429 U.S.

97, 104–05 (1976) (internal quotation marks and citation omitted). The failure

to treat drug withdrawal symptoms may state a constitutional claim. Pedraza

v. Meyer, 919 F.2d 317, 318–19 (5th Cir. 1990). Unsuccessful medical treatment,

negligence, neglect, and medical malpractice do not give rise to a § 1983 action,

and an inmate’s disagreement with his medical treatment does not establish a

constitutional violation. Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991). 

Grant concedes that at the time his prescription for morphine was

discontinued in August 2010, he received a disciplinary charge for possessing

two morphine pills in his cell. Although this disciplinary charge was later

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overturned, it is undisputed that Fortner was aware of this charge at the time

that he discontinued Grant’s prescription. The evidence before the district court

also showed that Grant had refused to attend a scheduled appointment with the

doctor who had prescribed the morphine. Fortner averred that he did not believe

that it was necessary to wean Grant off of the morphine because he believed that

the only way Grant could have had morphine in his cell was by not ingesting his

own prescription. He stated that there were no objective signs that Grant

suffered from severe withdrawal syndrome after the morphinewas discontinued,

and he noted that when Grant was seen at the prison clinic after the prescription

was discontinued, he was provided anti-nausea and pain medication. Dr. Steven

Bowers, the Legal Coordinator and Director of the Continuing Medical

Education Committee for the University of Texas Medical Branch-Correctional

Managed Health Care, stated via affidavit that the symptoms exhibited by

Grant following the discontinuation of his morphine prescription were

inconsistent with someone suffering from withdrawal syndrome.

Grant failed to demonstrate that there is a genuine issue of material fact

regarding whether Fortner was deliberately indifferent to his serious medical

needs, as required to establish an Eighth Amendment violation based on medical

treatment. See Reeves v. Collins, 27 F.3d 174, 176–77 (5th Cir. 1994); see also

Shockley v. Fox, 444 F. App’x 36, 37–38 (5th Cir. 2011) (upholding dismissal of

claim that prison officials were deliberately indifferent where they did not fill a

narcotic prescription because of prison policy but instead offered the inmate

other medications). Accordingly, the district court did not err in granting

Fortner’s motion for summary judgment and dismissing the complaint.

We lack jurisdiction over the appeal from the magistrate judge’s denial of

Grant’s motion for appointment of counsel because it is not a final order under

28 U.S.C. § 1291. See 28 U.S.C. § 636(b)(1)(A), (c)(1), (c)(3); Donaldson v. Ducote,

373 F.3d 622, 624–25 (5th Cir. 2004).

AFFIRMED in part and DISMISSED in part for lack of jurisdiction.

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