Blayne v. Flattery

* 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this opinion should not be published and is not precedent except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.
1
United States Court of Appeals
Fifth Circuit
F I L E D
May 10, 2006
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
No. 05-30783
Summary Calendar
KEITH WARREN BLAYNE,
Plaintiff-Appellant,
versus
J. FLATTERY,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Louisiana
(1:04-CV-327)
Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Keith Warren Blayne, federal prisoner # 70087-079, appeals,
pro se, the summary judgment awarded Dr. Flattery, a physician at
the prison where Blayne is incarcerated, in his action under Bivens
v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S.
388 (1971).
Blayne maintains Dr. Flattery was deliberately indifferent to
his serious medical needs by providing inadequate medical treatment

-- 1 of 3 --

2
and delaying surgery to remove a keloid from his left earlobe.
Blayne also asserts the district court granted summary judgment
without providing him an opportunity for discovery.
The summary judgment is reviewed de novo. E.g., Guillory v.
Domtar Indus., Inc., 95 F.3d 1320, 1326 (5th Cir. 1996). To
succeed on a Bivens claim, a prisoner must show a constitutional
violation has occurred. 403 U.S. at 395-97. To show a violation
of the constitutional prohibition against cruel and unusual
punishment, the violation asserted by Blayne, a prisoner must
demonstrate deliberate indifference to his serious medical needs.
Wilson v. Seiter, 501 U.S. 294, 297 (1991). This requires a
prisoner to provide evidence that prison officials “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. Tex. Dep’t of Criminal Justice, 239 F.3d 752, 756 (5th Cir.
2001) (internal quotation marks omitted).
Blayne was examined on numerous occasions by prison medical
staff who monitored his condition and provided treatment for his
keloid, but he did not receive surgery because the Bureau of
Prisons’ policy classified the procedure as cosmetic. Because
Blayne has not shown Dr. Flattery refused to treat him, ignored his
complaints, or intentionally treated him incorrectly, Blayne’s
complaints do not rise to the level of deliberate indifference.

-- 2 of 3 --

3
See id., Estelle v. Gamble, 429 U.S. 97, 105-07 (1976); Johnson v.
Treen, 759 F.2d 1236, 1238 (5th Cir. 1985). At most, his
allegations amount to negligence or medical malpractice claims,
which is insufficient for relief. See Varnado v. Lynaugh, 920 F.2d
320, 321 (5th Cir. 1991). Blayne’s complaint about the lack of
discovery is without merit. See Williamson v. United States Dep’t
of Agric., 815 F.2d 368, 382 (5th Cir. 1987).
AFFIRMED

-- 3 of 3 --