Summary Calendar ROBERTO BAEZ v. Immigration and Naturalization Service;

* 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should not be published and is not precedent except under the limited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.
United States Court of Appeals
Fifth Circuit
F I L E D
August 22, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-30112
Summary Calendar
ROBERTO BAEZ
Plaintiff-Appellant
v.
IMMIGRATION AND NATURALIZATION SERVICE; ET AL
Defendants
ROSEMARY MELVILLE, District Director; JUAN A CAMPOS, Assistance
District Director; ASA HUTCHINSON, Commissioner of Immigration and
Naturalization Service; K KENDRICK, Warden -- Orleans Parish Prison;
DOCTOR CALDWELL; DOCTOR GAUTREAUX; DOCTOR DILEO;
RICHARD D INGLESE; UNIDENTIFIED PARTY
Defendants-Appellees
Appeals from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:03-CV-1568
Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*

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No. 06-30112
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Roberto Baez appeals the district court’s summary judgment in favor of
Doctors Inglese, Caldwell, Dileo, Gautreaux, and Warden K. Kendrick of Orleans
Parish Prison (OPP), denying Baez’s claim that they were deliberately
indifferent to his serious medical needs. Baez’s motion for permission to file a
supplemental brief is granted. Baez argues for the first time on appeal that Dr.
Inglese’s certification that accompanied Baez’s medical records was not
notarized, was not a true affidavit as required by Fed. R. Civ. P. 56, and did not
satisfy the requirements for an unsworn declaration under 28 U.S.C. § 1746.
Because Baez failed to object to the admissibility of the medical records in the
district court, he has waived any objection to the admissibility of the records on
appeal. See BGHA, LLC v. City of Universal City, Texas, 340 F.3d 295, 299 (5th
Cir. 2003); see also Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d 646,
650 n.3 (5th Cir. 1992).
Baez argues that the district court erred in granting summary judgment
to the OPP physicians because there are genuine issues of material fact
concerning whether the medical records indicate that he had a nerve entrapment
and a hernia that required surgery and whether the pain medication prescribed
was sufficient to treat his pain. Baez argues that the physicians were
deliberately indifferent in that they did not make a good faith effort to contact
Baez’s previous physician, Dr. Howard Melton, who had recommended surgery;
they did not conduct tests or X-rays to determine whether he needed surgery;
they erroneously determined that he did not need surgery; and they delayed his
surgery and failed to prescribe adequate pain medication for his condition.
This court reviews de novo the district court’s grant of summary judgment.
Melton v. Teachers Ins. & Annuity Ass’n of America, 114 F.3d 557, 559 (5th Cir.
1997). Summary judgment is appropriate only where there is no genuine issue
of material fact and the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(c); Clark v. America’s Favorite Chicken Co., 110 F.3d 295, 297
(5th Cir. 1997).

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No. 06-30112
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Prison officials violate the constitutional prohibition against cruel and
unusual punishment when they demonstrate deliberate indifference to a
prisoner’s serious medical needs, constituting an unnecessary and wanton
infliction of pain. Wilson v. Seiter, 501 U.S. 294, 297 (1991). A prison official
acts with deliberate indifference “only if he knows that inmates face a
substantial risk of serious harm and disregards that risk by failing to take
reasonable measures to abate it.” Farmer v. Brennan, 511 U.S. 825, 847 (1994);
see also Reeves v. Collins, 27 F.3d 174, 176-77 (5th Cir. 1994). Unsuccessful
medical treatment, acts of negligence, neglect, or medical malpractice are
insufficient to give rise to a constitutional violation. Varnado v. Lynaugh, 920
F.2d 320, 321 (5th Cir. 1991). Disagreement with one's medical treatment is not
sufficient to state a cause of action under § 1983. Id. “Further, delay in medical
care can only constitute an Eighth Amendment violation if there has been
deliberate indifference, which results in substantial harm.” Mendoza v.
Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993).
Baez has not shown that the district court erred in granting summary
judgment in favor of the OPP physicians as he has not shown that there were
genuine issues of material fact that precluded summary judgment. The
undisputed evidence established that during the time Baez was incarcerated at
OPP, he received medical treatment and pain medication for his condition,
indicating that the physicians were not deliberately indifferent to his serious
medical needs. See Reeves, 27 F.3d at 176-77. The physicians’ prescription of
Ultram for Baez’s pain was reasonable given the OPP policy that narcotics could
not be prescribed, and the physicians increased the dosage when Baez
complained that the medication was not effective. That Baez ultimately had
surgery to repair a hernia after he was transferred to the Yazoo City facility
indicates at most that the OPP physicians were negligent and does not rise to
the level of a constitutional violation under § 1983. See Varnado, 920 F.2d at
321. Baez’s disagreement with the medical treatment provided by the OPP

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No. 06-30112
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physicians does not establish a constitutional claim under § 1983. See id.
Therefore, Baez has not shown that the district court erred in granting summary
judgment in favor of the OPP physicians as to his claim that they were
deliberately indifferent to his serious medical needs. See Farmer, 511 U.S. at
847; see also Reeves, 27 F.3d at 176-77.
Baez has filed a motion for appointment of counsel on appeal. Counsel will
be appointed in civil cases only in exceptional circumstances. Richardson v.
Henry, 902 F.2d 414, 417 (5th Cir. 1990). Baez has not shown that exceptional
circumstances warrant appointment of counsel on appeal. Therefore, his motion
is denied.
AFFIRMED; MOTION TO FILE SUPPLEMENTAL BRIEF GRANTED;
MOTION FOR APPOINTMENT OF COUNSEL DENIED.

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