Alfred v. TDCJ Inst Division, 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
November 13, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-40313
Summary Calendar
LARRY W. ALFRED,
Plaintiff-Appellant,
versus
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION; EUGENE HARBIN, Warden;
CHARLES ADAMS, Director of Health Services,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:99-CV-172
Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.
PER CURIAM:*
Larry W. Alfred, Texas prisoner # 644376, appeals the grant of
summary judgment in favor of the defendants on his Eighth Amendment
claims. For the reasons stated below, we AFFIRM.
Alfred filed a complaint in district court under 42 U.S.C. §
1983 alleging that prison officials had violated his civil rights.
Specifically, he contended that Eugene Harbin, the former Assistant

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1Hale v. Townley, 45 F.3d 914, 917 (5th Cir. 1995).
2See Harris v. Hegmann, 198 F.3d 153, 159 (5th Cir. 1999).
3Fielder v. Bosshard, 590 F.2d 105, 107 (5th Cir. 1997).
2
Warden of the Stiles Unit prison facility, and Dr. Charles Adams,
the Director of Health Services, were deliberately indifferent to
his medical condition and that he suffered further injuries as a
result. He claims that, although he informed Harbin that his knee
was injured and that he had difficulty reaching his third-floor
prison cell, Harbin refused to move him to a first-floor unit. He
also claims that Adams refused to allow him to see a medical
specialist for a spinal injury, even though Alfred’s doctor
provided a referral.
The district court rejected Alfred’s argument and granted
summary judgment for the defendant-appellees. We review the
district court’s grant of a motion for summary judgment de novo,
applying the same legal standard as the district court.1
Alfred first argues that the district court erred in granting
summary judgment because Harbin had the power and responsibility to
move prisoners from cell to cell but refused to move Alfred to a
first floor cell. To prevail on a claim of deliberate
indifference, Alfred must prove both that Harbin knew of and
disregarded an excessive risk to Alfred’s health or safety;2 mere
negligence or neglect do not constitute deliberate indifference.3
Although Alfred has made conclusory allegations that Harbin acted

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4See Varnado v. Lynaugh, 920 F.3d 320, 321 (5th Cir. 1991).
5United States v. Garcia-Pillado, 898 F.2d 36, 39 (5th Cir.
1990) (“[I]ssues raised for the first time on appeal ‘are not
reviewable by this court unless they involve purely legal questions
and failure to consider them would result in manifest injustice.’”
(quoting Self v. Blackburn, 751 F.2d 789, 793 (5th Cir. 1985)).
3
with deliberate indifference, he has failed to show either that
Harbin was aware of a substantial risk of harm to Alfred or that
Harbin disregarded that risk.
Alfred next argues that Adams deliberately disregarded the
risk to his health by blocking a referral to a specialist even
though the prison medical staff was incapable of treating Alfred’s
injured back. As with his claims against Harbin, Alfred has failed
to demonstrate that Adams acted with deliberate indifference.
Alfred’s medical records reveal that he received extensive
treatment for his knee and back injuries. At most, the record
reveals that his treatments were unsuccessful, and his allegations
of deliberate indifference manifest only a disagreement with the
medical treatment he received. A prisoner’s disagreement with
prison officials regarding medical treatment, however, does not
give rise to a claim of deliberate indifference.4
Finally, Alfred argues that his constitutional rights were
violated because prison officials filed his complaint in federal
court rather than state court, as he requested. Alfred did not
present this argument to the district court, however, and we
decline to address it now.5

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4
The judgement of the district court is AFFIRMED. Alfred’s
request for appointment of counsel is DENIED.

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