Fitch v. Adams, et al

* 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this opinion should not be published and is not precedent except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.
** Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971).
United States Court of Appeals
Fifth Circuit
F I L E D
April 17, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-40625
Conference Calendar
DAVID KENT FITCH,
Plaintiff-Appellant,
versus
C.D. ADAMS, M.D.; A. VILLASON, M.D.; P. HASHOP, R.N.; JOHN MILES,
Warden,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:05-CV-255
--------------------
Before HIGGINBOTHAM, BENAVIDES, and PRADO, Circuit Judges.
PER CURIAM:*
David Kent Fitch, federal prisoner # 34775-048, appeals the
dismissal of his Bivens** action alleging that the defendants
were deliberately indifferent to Fitch’s serious medical needs by
providing constitutionally inadequate treatment for a hernia and
a serious spinal condition. The district court dismissed his
complaint without prejudice for failure to exhaust administrative
remedies as required by 42 U.S.C. § 1997e(a). After the district

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court entered judgment in this case, the United States Supreme
Court clarified that exhaustion of remedies is an affirmative
defense that need not be pleaded and proven in a prisoner’s
initial complaint. Jones v. Bock, 127 S. Ct. 910, 918-22 (2007).
It is unnecessary to remand this case to the district court
because we conclude that the dismissal of the complaint may be
affirmed on other grounds. See Sojourner T v. Edwards, 974 F.2d
27, 30 (5th Cir. 1992). It is clear from Fitch’s complaint and
his appellate brief that his claims concern malpractice and
disagreement with his medical treatment. These allegations do
not establish the constitutional violation necessary for a
plaintiff to prevail in a Bivens action. See Estelle v. Gamble,
429 U.S. 97, 106 (1976).
Accordingly, we modify the judgment to reflect that the
complaint is dismissed with prejudice and we affirm as modified.
AFFIRMED AS MODIFIED.

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