Trаvis Hunter Blank, federal prisoner # 16486-078, filed a 42 U.S.C. § 1983 complaint against Linda Bell, a nurse at the Rockwall County Jail, alleging she was deliberately indifferent to his serious medical needs (Crohn’s disease and a preexisting neck injury), while he was a pretrial detainee at the jail. The district court granted Nurse-Bell’s motion for summary judgment on the basis of qualified immunity.
Although he had assistance of counsel in district court, Blank proceeds pro se on appeal. In challenging the summary judg
A summary judgment is reviewed de novo, applying the same standards as the district court. Hernandez v. Yellow Transp., Inc.,
Upon an invocation of qualified immunity, however, “the usual summary judgment burden of proof is altered”. Michalik v. Hermann,
The qualified immunity defense protects “all but the plainly incompetent or those who knowingly violate the law”. Malley v. Briggs,
Concerning the first prong of the qualified immunity analysis, violation of a constitutional or statutory right, all of Blank’s contentions rest on Nurse Bell’s alleged deliberate indifference to his need for medical care. “A pretrial detainee’s constitutional right to medical care, whether in prison or other custody, flows from the ... due process guarantees of the Fourtеenth Amendment.” Wagner v. Bay City, Tex.,
“‘Deliberate indifference’ requires that the official have subjective knowledge of the risk of harm.” Id. (emphasis in original). Therefore, Blank must demonstrate a genuine dispute of material fact that: Nurse Bell “had subjective knowledge of facts from.which an inference of substantial risk of serious harm could be drawn”; she “drew that inference”; and her “response to the risk indicates [she] subjectively intended that harm occur”. Tamez v. Manthey,
Along that line, neither an incorrect diagnosis nor the failure to alleviate a significant risk that should have been perceived, but was not, is sufficient to establish deliberate indifference. Id. Unsuccessful treatment, medical malpractice, and acts of negligence do not constitute deliberate indifference; nor does a prisoner’s disagreement with his medical treatment, absent exceptional circumstances. Gobert v. Caldwell,
First, Blank asserts the court erred in granting summary judgment against his claim that Nursе Bell impermissibly delayed or denied his access to Dr. Sand-knop. Blank ‘ contends the evidence showed Nurse Bell failed to contact Dr. Sandknop about the deterioration of his Crohn’s condition for long periods of time.
Blank points to no evidence in the record to substantiate that belief. At his deposition, he admitted he did not have any evidence that Nurse Bell kept him frоm seeing Dr. Sandknop. A party may not rely upon unsubstantiated or concluso-ry assertions. Morris v. Covan World Wide Moving, Inc.,
Blank’s desire to see Dr. Sandknop more often amounts to a disagreement over his treatment, which, as discussed supra, does not rise to the level of deliberate indifference. See Gobert,
Second, Blank contends the court erred in granting summary judgment against' his claim that Nurse Bell denied him access to a specialist, He relies heavily upon the fact that, following his three hospitalizations, his discharge instructions directed he see a specialist or other outside private general practitioner. Blank asserts the evidence shows Nursе Bell consciously chose to ignore the hospital-discharge instructions in that regard.
Although the intentional failure to schedule an appointment with a specialist may amount to deliberate indifference when it causes substantial harm, the negligent failure to schedule an appointment does not. See, e.g,, Carrothers v. Kelly,
Third, Blank maintains Nurse Bell was deliberately indifferеnt to his serious medical needs when she disregarded Dr. Sandknop’s direct order that he be given a special diet (the avoidance of spicy and fried foods). “Prison officials have a сonstitutional obligation to provide reasonably adequate food” to inmates. Eason v. Thaler,
Although Blank may have interpreted Dr. Sandknop’s statement that he should “avoid” spicy and fried foods as а medical order, no' such written order appears in the record. Blank did not challenge Dr. Sandknop’s statement that, if he ordered a special diet, it would have been included in the рrogress notes. Further, Nurse Bell did not recall discussing a special diet with Dr. Sandknop at any time. Blank’s unsubstantiated and subjective belief that Dr. Sandknop ordered a special diet is insufficient. See Morris,
Blank’s unsupported assertion that “special diets are required” for Crohn’s patients and that Bell’s failure to administer such a diet supports a finding of deliberate indifference similarly fails. Dr. Sandknop stаted there were no medically specialized diets for Crohn’s patients, and Blank did not challenge this assertion. To the extent he maintains a special diet should have been orderеd, such a contention amounts to a disagreement with the course of his medical treatment and, again, is not actionable. See Gobert,
In addition, the evidence indicated that, when Nurse Bell learnеd Blank began rejecting his food, she went to great lengths to provide him with alternative nutrients and made requests for specialized food trays. Blank fails to demonstrate that Nurse Bell intentionally delayed or denied him access to proper nutrition or otherwise engaged in any conduct that indicated “a wanton disregard for any serious medical needs”. Domino,
Fourth, and finally, Blank maintains thе court erred in granting summary judgment against his claim that Bell was deliberately indifferent to his alleged neck injury; specifically, her failure to provide a narcotic painkiller. The record showed Nurse Bell did not have the authority to prescribe medications, and it was in Dr. Sandknop’s discretion whether to follow any medication prescriptions in Blank’s hospital-discharge instructions. Aсcordingly, Blank fails to show Nurse Bell acted ■with deliberate indifference. See id.
AFFIRMED.
Notes
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.