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

No. 11-40849 Summary Calendar

MARK GRANT, Plaintiff-Appellant

v. P HYS I C IAN AS S I S T

ANT DA VI D F O RT N E R ; LI E UT E N ANT C O RR E C TI O N

AL OFFIC E R 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: * M a r k Grant, Texas prisoner # 807219, appeals the district court’s gr a n t of summary judgment and dismissal of his 4 2 U

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. § 1983 action and the denial of his motion for appointment of counsel. Grant argues that physician’s assistant David Fortner violated G r a nt’s Eighth Amendment rights when Fortner discontinued Grant’s prescription for morphine without weaning Grant 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 August 27, 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 forth in 5 T H C IR

. R. 47.5 .4. Case: 11-40849 Document: 00511970176 Page: 1 Date Filed: 08/27/2012No. 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 do e s n o t challenge the latter finding, nor does he challenge the district court’s prior ruling dismissing his claims against the other defendants. Ac c o r di ngly, he has abandoned such issues. See Yohey v. Collins , 985 F.2d 222, 224–25 (5th Cir. 1 993). We review a gr ant 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 o f f i c i al pleads qualified immunity as a defen s e, 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 deliberat e indifference to a prisoner’s serious medical ne e ds, 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 constitution a l c l a i m. 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 t h a t t here were no objective signs that Grant

s uf fered from severe withdrawal syndrome after the m orp hin e w a s di s c o ntinu e d , 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 Di r e c tor of the Continuing Medical Education Committee for the University of Texas Medical Branch-Correctional Managed Health Care, stated vi a affidavit that the symptoms exhibited by Grant following the di scontinuation 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 Fort n e r w a s deliberately indifferent to his serious medical need s , a s r e quired to establish an Eighth Amendment violation based on medical treat m e n t

. 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 t h e i n m a te other medications). Acco r di n gl y , 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. 2 004). AFFIRMED in part and DISMISSED in part for lack of jurisdiction.
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