* 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should not be published and is not precedent except under the limited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. 07-30766

Summary Calendar

DAVID D CLIFFORD, also known as Michael J Coleman

Plaintiff-Appellant

v.

JANE DOE, NursePractitioner at Elayn Hunt Correctional Center; JOHN DOE,

Emergency Medical Technician at Elayn Hunt Correctional Center; J DOE,

Medical Records Custodian at Elayn Hunt Correctional Center; ROBERT Y

HENDERSON; NATE CAIN, II; PESHOFF; JOSEPH RUEBUSH; MARGARET

AUBIN; J BORDELON; LINDA DERISE; CAPTAIN THOMPSON, at PAUL

PHELPS CORRECTIONAL CENTER; DELANIE BURGESS; CAPTAIN

CLOUD; LIEUTENANT COLONEL CLOUSE; LIEUTENANT COLONEL

MYERS; LIEUTENANT PAUL A ROYER; ASSISTANT WARDEN ROY

WILLIAMS; COLONEL WILSON 

Defendants-Appellees

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 2:06-CV-2368

Before WIENER, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

United States Court of Appeals

Fifth Circuit

F I L E D

December 15, 2008

Charles R. Fulbruge III

Clerk
No. 07-30766

2

David D. Clifford, Louisiana prisoner # 109543, appeals the district court’s

dismissal of his 42 U.S.C. § 1983 civil rights complaint against several state and

federal prison officials. Clifford contends that the district court erred when it

dismissed his denial of medical care claims for failure to state a claim upon

which relief may be granted pursuant to 28 U.S.C. § 1915A(b)(1). Specifically,

he argues that he had a serious pre-existing back condition, that a private

physician prescribed a specific treatment plan, and that the medical staff at the

C. Paul Phelps Correctional Center (PCC) refused to comply with the private

physician’s treatment plan. Clifford also argues that the PCC medical staff

denied him medication for his back condition and that the only treatment he

received was one day of physical therapy. This court reviews dismissals for

failure to state a claim under § 1915A de novo. Bazrowx v. Scott, 136 F.3d 1053,

1054 (5th Cir. 1998). 

Clifford’s amended complaint and the medical records attached to his

pleadings show that on May 3, 2006, he was taken to the W.O. Moss Regional

Medical Center, where he was examined by Dr. Butler. Without ordering an xray, Dr. Butler prescribed 800mg of Motrin three times a day for ten days. He

also prescribed a back brace and Capsaicin ointment twice a day, to be ordered

by Dr. Crawford at the PCC. Two days later, Dr. Crawford ordered an x-ray of

Clifford’s lumbar spine. The x-ray results showed that Clifford’s alignment, disc

spacing, and sacroiliac joints were within normal limits. Based on these results,

the PCC medical staff determined that no back brace or Capsaicin ointment

would be issued. The PCC medical staff also noted that Clifford was taking

400mg of Motrin twice a day. A doctor’s failure to follow the advice of another

doctor suggests nothing more than a difference in medical opinion. See Stewart

v. Murphy, 174 F.3d 530, 535 (5th Cir. 1999). Further, the question whether

“additional diagnostic techniques or forms of treatment is indicated is a classic

example of a matter for medical judgment.” Estelle v. Gamble, 429 U.S. 97, 107

(1976). Therefore, the PCC medical staff’s failure to follow Dr. Butler’s
No. 07-30766

3

recommended treatment plan did not constitute a deliberate indifference to his

serious medical needs. See Stewart, 174 F.3d at 535. 

Clifford’s amended complaint and the medical records attached to his

pleadings also show that Nurse Margaret Aubin prescribed physical therapy for

his back problems. Clifford complained that he was unable to perform the

prescribed exercises and attempted to refuse the therapy. In addition to physical

therapy, Aubin told Clifford that she would prescribe Motrin for his back pain.

However, when he wentto pick up his medication, Clifford was told that because

he had sufficient funds, he could purchase the Motrin in the prison canteen.

Although Clifford alleged that indigent inmates could only purchase a limited

amount of Motrin each month and thatthis cap was insufficient to meet his pain

management needs, he did not allege that he purchased the maximum amount

of Motrin allowed and that he was denied additional tablets. Further, prison

records show that Clifford was obtaining Motrin from the prison canteen free of

charge. Clifford’s allegations were insufficient to state a constitutional violation

because, at most, they amounted to a disagreement with the course of medical

care provided by the PCC medical staff. Therefore, the district court did not err

when it dismissed Clifford’s denial of medical care claims for failure to state a

claim upon which relief may be granted. Varnado v. Lynaugh, 920 F.2d 320, 321

(5th Cir. 1991). 

Clifford also contends that the district court erred when it dismissed his

claims against Richard Stalder as legally frivolous pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(i). Specifically, he argues that as Secretary of the Louisiana

Department of Public Safety and Corrections (DPSC), Stalder was responsible

for the creation and implementation of Health Care Policy No. HC-03, which

provided that DPSC health care providers were not obligated to follow any

recommendation or instruction by private physicians, hospitals, or other health

care providers. This court reviews dismissals for frivolousness under
No. 07-30766

4

§ 1915(e)(2)(B)(i) for abuse of discretion. Harper v. Showers, 174 F.3d 716, 718

(5th Cir. 1999). 

As previously discussed, a doctor’s failure to follow the advice of another

doctor suggests nothing more than a difference in medical opinion. See Stewart,

174 F.3d at 535. Thus, a policy which allows prison medical officials to either

approve or disapprove a private physicians’s recommendation raises no

constitutional issue. See id. Therefore, the district court did not abuse its

discretion when it dismissed Clifford’s claims against Stalder as legally frivolous.

See Harper, 174 F.3d at 718. 

Clifford also contends that the district court erred when it dismissed his

due process claims with prejudice. He argues that the dismissal should have

been without prejudice until such time as he could satisfy the requirements of

Heck v. Humphrey, 512 U.S. 477 (1994). In Boyd v. Biggers, 31 F.3d 279, 284

(5th Cir. 1994), this court expressly held that it was not error to dismiss a

complaint pursuant to Heck with prejudice. Therefore, the district court did not

err when it dismissed Clifford’s due process claim arising from the disciplinary

proceeding in which he lost good time credit with prejudice until the Heck

conditions were met. See id.

Clifford also contends that the district court erred when it declined to

exercise supplemental jurisdiction over his state law claims. As previously

discussed, the district court did not err when it dismissed Clifford’s federal

claims. Therefore, the district court did not abuse its discretion in dismissing his

state law claims without prejudice. See Bass v. Parkwood Hosp., 180 F.3d 234,

246 (5th Cir. 1999). 

Clifford also contends that the district court erred when it denied his

motion for the appointment of counsel. Aside from conclusory allegations,

Clifford has failed to show that his case was factually complex or that he was

incapable of adequately presenting it. Therefore, he has failed to demonstrate

that the district court abused its discretion when it implicitly affirmed the
No. 07-30766

5

magistrate judge’s denial of his motion for the appointment of counsel. See Cupit

v. Jones, 835 F.2d 82, 86 (5th Cir. 1987).

Finally, Clifford does not challenge the district court’s dismissal of his

claims against Harry G. Lappin, Nurse Durham, or the unnamed defendants.

He also does not challenge the district court’s dismissal of the denial of medical

care claims arising from his incarceration at the Elayn Hunt Correctional

Center, or his equal protection, Americans with Disabilities Act, and Federal

Tort Claims Act claims. Further, Clifford does not challenge the district court’s

determination that: (1) his claims for injunctive relief were moot; (2) the

disciplinary proceedings in which he was not deprived of good time credit did not

implicate due process concerns; (3) to the extent his complaint could be

construed as seeking habeas relief, he failed to exhaust state court remedies; (4)

he failed to state a claim for denial of access to the courts; and (5) the two-week

denial of out-of-cell exercise was insufficient to establish an Eighth Amendment

violation. Therefore, these issues are deemed abandoned. See Hughes v.

Johnson, 191 F.3d 607, 613 (5th Cir. 1999).

Accordingly, the district court’s judgment is AFFIRMED.