Burge v. Stalder, et al

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 01-31484
Summary Calendar
_______________
MIKE BURGE,
Plaintiff-Appellant,
VERSUS
RICHARD L. STALDER; BURL CAIN; DARREL VANNOY;
PAT TRUETT; BARNES, DR.; DIFATTA, DR.; PREGO, DR.;
TARVER, DR.; UNKNOWN GUTIERREZ, DR.;
LIZZY SMITH,
NURSE;
COCO, SGT.,
EMERGENCY MEDICAL TECHNICIAN;
OTT, SGT.,
EMERGENCY MEDICAL TECHNICIAN,
AND LOUISIANA STATE PENITENTIARY MEDICAL STAFF,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Middle District of Louisiana
m 01-CV-60-A
_________________________
December 4, 2002

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Before HIGGINBOTHAM, SMITH, and
CLEMENT, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Mike Burge filed this civil rights action
under 42 U.S.C. § 1983 against state and pri-
son officials, contending that they have dis-
criminatorily denied him necessary medical
care in violation of his rights under the Eighth
and Fourteenth Amendments. He also asserts
unspecified state law claims. Agreeing with
the district court that Burge has failed to state
a claim for the violation of constitutional
rights, we affirm the dismissal of the complaint
in its entirety, under FED. R. CIV. P. 12(b)(6),
and without prejudice to any state law claims.
I.
Burge alleges that in January 2000 he was
diagnosed with hepatitis C. In February, he
filed an administrative grievance requesting to
be examined by a “liver specialist” and an
“LSU doctor.” The administrative grievance
was denied. Over the course of the next year,
Burge received medical treatment for hepatitis
C and other medical conditions. Twice he re-
newed his request for a referral to a liver spe-
cialist; each time, his request was denied, one
doctor telling him that such a referral would be
ordered only if he failed three consecutive liver
function tests.
Burge alleges that the failure to refer him to
a liver specialist constituted deliberate indiffer-
ence to his hepatitis condition in violation of
the Eighth Amendment’s prohibition of cruel
and unusual punishment. He further alleges
that because two other inmates received refer-
rals despite noncompliance with the LSP refer-
ral policy, the refusal to refer him violated the
equal protection clause of the Fourteenth
Amendment. In addition to these federal con-
stitutional claims, Burge alleges certain state
law violations.
The defendants aver that Burge’s complaint
fails to state a claim for relief; they assert the
defense of qualified immunity. Burge seeks
damages and declaratory and injunctive relief.
Specifically, he seeks an injunction ordering
defendants to send him to a liver specialist, to
test his blood every sixty days, to order a biop-
sy of his liver, and to hire a medical expert to
evaluate deficiencies in staffing and facilities.
II.
We review the grant of a rule 12(b)(6) mo-
tion de novo. Oliver v. Scott, 276 F.3d 736,
740 (5th Cir. 2002). We accept all well-plead-
ed facts as true and view them in the light most
favorable to the plaintiff. McCartney v. First
City Bank, 970 F.2d 45, 47 (5th Cir. 1992).
Burge contends that the refusal to allow
him to see a liver specialist constituted a vio-
lation of the Eighth Amendment’s prohibition
of cruel and unusual punishment. Prison offi-
cials violate the Eighth Amendment when they
demonstrate deliberate indifference to a pris-
oner’s serious medical condition. Wilson v.
Seiter, 501 U.S. 294, 297 (1991). Deliberate
indifference requires a showing that the official
“knows that the inmate[] face[s] a substantial
risk of harm and disregards that risk by failing
to take reasonable measures to abate it.” Far-
mer v. Brennan, 511 U.S. 825, 847 (1994). In
other words, an inmate pursuing a claim for
deliberate indifference must show that prison
official “refused to treat him, ignored his com-
plaints, intentionally treated him incorrectly, or
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-
lished and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.

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engaged in any similar conduct that would
clearly evince a wanton disregard for any se-
rious medical needs.” Domino v. Tex. Dep’t
of Criminal Justice, 239 F.3d 752, 756 (5th
Cir. 2001) (internal quotation and citation
omitted).
Far from demonstrating the deliberate in-
difference of the defendants, the facts alleged
by Burge establish that he had access to neces-
sary medical care. In 1999, Burge sought
treatment from prison doctor Burnes several
times complaining of cramps. In January
2000, Burnes confirmed that Burge had hepa-
titis and prescribed vitamins. In May, Burge
was treated by a nurse practitioner for pain in
his left side. He saw the nurse practitioner
again in July and was prescribed antibiotics for
a bladder infection. This course of treatment
was followed by a visit to prison doctor Prego,
who informed Burge that he was clear of the
infection.
Burge later was treated by yet another phy-
sician, Gutierrez, who informed him that he
could not see a liver specialist and that there
was nothing wrong with him despite com-
plaints of pain and pressure. Burge noted in
his complaint that in the ensuing months he
received additional medical attention and was
placed on antibiotics by prison doctor DiFatta,
who also prescribed a high-fiber diet, a breath-
ing inhaler, colon medication, and testing.
In October 2000, Prego conducted Burge’s
annual physical, which provided another op-
portunity for the medical staff to evaluate his
condition, despite the fact that Burge contends
the physical was inadequate in comparison to
that given him by a Louisiana State University
doctor in 1999. Finally, in January 2001,
Burge met with prison doctor Hand, who in-
formed him that he was ineligible for a referral
to a liver specialist because his September
2000 liver test had been normal. Hand did
consent, however, to conduct a current liver
test at Burge’s request.
The foregoing history demonstrates that
Burge was examined on a regular basis and
treated for various ailments. On these facts, it
is impossible to conclude that prison officials
and medical staff were indifferent to Burge’s
hepatitis. Instead, Burge’s complaint merely
describes his disagreement with prison policy
requiring three abnormal liver tests before re-
ferring inmates to a liver specialist. An in-
mate’s disagreement with treatment policy,
however, does not establish deliberate indiffer-
ence. Norton v. Dimazana, 122 F.3d 286, 292
(5th Cir. 1997). Accordingly, we agree with
the district court that Burge has failed to state
a claim for deliberate indifference.
III.
Burge argues that defendants demonstrated
favoritism toward certain inmates by referring
them to liver specialists despite their failure to
meet the LSP referral standard. Specifically,
Burge alleges that two inmates, Danny Fabre
and Bobby Turner, were referred to a special-
ist despite their noncompliance with the re-
quirement of three abnormal liver tests. Burge
contends that such favoritism is contrary to the
mandate of the Equal Protection Clause “that
all persons similarly circumstanced shall be
treated alike[.]” Cunningham v. Beavers, 858
F.2d 269, 272 (5t h Cir. 1988) (citation omit-
ted).
To succeed on his equal protection claim,
Burge must show “that an illegitimate animus
or ill-will motivated [his] intentionally different
treatment from others similarly situated and
that no rational basis existed for such treat-
ment.” Shipp v. McMahon, 234 F.3d 907, 916

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(5th Cir. 2000) (citing Village of Willowbrook
v. Olech, 528 U.S. 562, 564 (2000)), cert.
denied, 532 U.S. 1052 (2001). Moreover,
“[d]iscriminatory purpose in an equal pro-
tection context implies that the decisionmaker
selected a particular course of action at least in
part because of, and not simply in spite of, the
adverse impact it would have on an identifiable
group.” Woods v. Edwards, 51 F.3d 577, 580
(5th Cir. 1995) (quoting United States v.
Galloway, 951 F.2d 64, 65 (5th Cir. 1992)).
Therefore, to demonstrate that the alleged
disparity of treatment constitutes an equal
protection violation, Burge must demonstrate
a discriminatory purpose. Id.
Burge asserts that certain prisoners, many
of them white, receive preferential medical
treatment. As evidence of this discrimination,
Burge offers only that Fabre and Turner re-
ceived referrals to liver specialists despite their
failure to meet the requirement of three abnor-
mal liver tests and general allegations of dis-
criminatory practices favoring an ill-defined
group of inmates. Burge alleges no specific
conduct or statements by any of the individual
defendants that would support an inference of
discriminatory intent.
In the face of the assertion by a defendant
public official of the defense of qualified im-
munity, a § 1983 plaintiff must comply with a
heightened pleading standard. Baker v. Put-
nal, 75 F.3d 190, 195 (5th Cir. 1996). This
heightened pleading standard “requires more
than conclusory assertions. It requires claims
of specific conduct and actions giving rise to a
constitutional violation.” Id. Burge offers on-
ly conclusional allegations of discrimination
and fails to identify any specific instances of
discriminatory conduct or expressions of dis-
criminatory intent. His complaint therefore
fails to comply with the heightened pleading
standard, and the dismissal for failure to state
a claim was appropriate.
IV.
Burge appeals the denial of his requests to
amend his complaint and to conduct discovery
before dismissal. We review these rulings for
abuse of discretion.2
A.
Although FED. R. CIV. P. 15(a) provides
that leave to amend “shall be freely given when
justice so requires,” permission to amend
pleadings “‘is by no means automatic.’” Par-
ish, 195 F.3d at 763. Rather, “[t]he decision
‘lies within the sound discretion of the district
court.’” Id. (quoting Little v. Liquid Air
Corp., 952 F.2d 841, 845-46 (5th Cir. 1992)).
Burge did not seek to amend to present addi-
tional allegations that would cure the initial
defective pleading; instead, he sought to add
new defendants and allege facts that arose
after he filed his original complaint. Under
these circumstances, the district court did not
abuse its discretion in refusing to allow Burge
to amend.3
2 See Parish v. Frazier, 195 F.3d 761, 763 (5th
Cir. 1999); Canady v. Bossier Parish Sch. Bd.,
240 F.3d 437, 444 (5th Cir. 2001) (citing Leather-
man v. Tarrant County Narcotics Intelligence &
Coordination Unit, 28 F.3d 1388, 1394 (5th Cir.
1994)).
3 See Parish, 195 F.3d at 764 (finding no abuse
of discretion in denying motion to amend where
amendment would increase delay and expand the
allegations beyond scope of original complaint);
Ross v. Houston Indep. Sch. Dist., 699 F.2d 218,
229 (5th Cir. 1983) (finding no abuse of discretion
in denying motion to amend where proposed
amendment sought to add new issues and parties
and required new discovery and additional hear-

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Further, “it is within the district court’s dis-
cretion to deny a motion to amend if it is fu-
tile.” Stripling v. Jordan Prod. Co., 234 F.3d
863, 872-73 (5th Cir. 2000). A proposed
amendment is futile where “the amended com-
plaint would fail to state a claim upon which
relief could be granted.” Id. at 873. The al-
legations contained in Burge’s amended com-
plaint are similar in kind to those in the original
and fail to provide any support for his claims
of inadequate medical care and discriminatory
treatment. Because the complaint, as amend-
ed, still would fail to state a claim, it was with-
in the discretion of the district court to deny
Burge’s motion to amend.
B.
Burge contends that the district court erred
by dismissing his claims without allowing dis-
covery that, as Burge appears to concede in
his brief, was never requested. We disagree.
The purposes underlying the doctrine of
qualified immunity support the conclusion that
it is an immunity not merely from liability but
also from the costs associated with trial.4
Consequently, “[t]he district court need not al-
low any discovery . . . unless the ‘plaintiff has
supported his claim with sufficient precision
and factual specificity to raise a genuine issue
as to the illegality of defendant’s conduct at
the time of the alleged acts.’”5 Given that
Burge failed to state a claim, the district court
did not err in dismissing his complaint without
allowing for discovery.
AFFIRMED.
3(...continued)
ings).
4 See Mitchell v. Forsyth, 472 U.S. 511, 525-26
(1985); see also id. at 526 (stating that “even such
pretrial matters as discovery are to be avoided if
possible, as ‘[i]nquiries of this kind can be pecu-
liarly disruptive of effective government’”) (quot-
ing Harlow v. Fitzgerald, 458 U.S. 800, 817
(1982)).
5 Reyes v. Sazan, 168 F.3d 158, 161 (5th Cir.
1999) (quoting Schultea v. Wood, 47 F.3d 1427,
1434 (5th Cir. 1995) (en banc)); see also Vander
Zee v. Reno, 73 F.3d 1365, 1368 (5th Cir. 1996)
(“Even limited discovery on the issue of qualified
immunity ‘must not proceed until the district court
first finds that the plaintiff’s pleadings assert facts
which, if true, would overcome the defense of
qualified immunity.’”) (citing Wicks v. Miss. State
Employment Serv., 41 F.3d 991, 994 & n.10 (5th
Cir. 1995)).

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