Joshua Parrish v. Lorie Davis, Director, et al

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 18-20704
Summary Calendar

JOSHUA W. PARRISH,

Plaintiff–Appellant,

v.

JAMES E. BERRY, Lieutenant at Ellis Unit; FREDERICK J.
MCCULLOUGH, Lieutenant at Ellis Unit; JAN A. GUSTAFSON, Lieutenant
at Ellis Unit; TONI DEER; BETTY WILLIAMS; GWENDOLYN CHARVET;
JAMES COLEMAN,

Defendants–Appellees.

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:17-CV-2339

Before OWEN, Chief Judge, and SOUTHWICK and WILLETT, Circuit Judges.
PER CURIAM:
*

Joshua W. Parrish, Texas prisoner # 1619201, filed a civil rights
complaint under 42 U.S.C. § 1983, alleging deliberate indifference to his
serious medical needs and naming numerous employees of the Texas
Department of Criminal Justice-Correctional Institutions Division (TDCJ-

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
January 9, 2020

Lyle W. Cayce
Clerk
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No. 18-20704
2
CID) and employees of the University of Texas Medical Branch (UTMB) as
defendants.
TDCJ-CID employees Lt. James E. Berry, Lt. Frederick J. McCullough,
and Lt. Jan A. Gustafson moved to dismiss Parrish’s complaint against them
as unexhausted under 42 U.S.C. § 1997e(a). UTMB employees, Physician
Assistant (PA) Toni Deer, Dr. Betty Williams, nurse Gwendolyn Charvet, and
Dr. James Coleman moved for summary judgment. The motion sought
dismissal of the claims against Charvet, Coleman, and Williams for failure to
exhaust and summary judgment in favor of Deer because Parrish had not
alleged that she had been deliberately indifferent to his serious medical needs.
The district court concluded that only the claim against Deer had been
administratively exhausted and dismissed the claims against the other
defendants. The district court then concluded that Parrish had failed to allege
a constitutional claim against Deer. Parrish appeals.
“We review a summary judgment de novo, applying the same legal
standards as the district court.”
1
A prisoner who wishes to file a § 1983 suit
for damages against prison officials must exhaust administrative remedies
before doing so.
2
As Parrish did not pursue a grievance through the Texas
prison system regarding any of his allegations except his allegations against
Deer, he failed to satisfy the exhaustion requirement with respect to all his
claims against the other defendants.
3
The district court did not err by
dismissing the claims against all the defendants except Deer.
4

1
Prospect Capital Corp. v. Mut. of Omaha Bank, 819 F.3d 754, 756-57 (5th Cir. 2016)
(citing Hemphill v. State Farm Mut. Auto. Ins. Co., 805 F.3d 535, 538 (5th Cir.2015)); see also
Mississippi River Basin All. v. Westphal, 230 F.3d 170, 174 (5th Cir. 2000) (citing F
ED. R.
CIV. P. 56).
2
42 U.S.C. § 1997e(a).
3
See Johnson v. Johnson, 385 F.3d 503, 515, 522-23 (5th Cir. 2004).
4
See Jones v. Bock, 549 U.S. 199, 202-03 (2007).
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No. 18-20704
3
To state a claim under the Eighth Amendment against Deer, Parrish
must have alleged facts to show “deliberate indifference to [his] serious medical
needs, constituting an ‘unnecessary and wanton infliction of pain.’”
5
“Medical
records of sick calls, examinations, diagnoses, and medications may rebut an
inmate’s allegations of deliberate indifference.”
6
As the district court
concluded, Parrish’s disagreement with Deer’s medical conclusion does not
support a claim of a constitutional violation.
7

AFFIRMED.

5
Easter v. Powell, 467 F.3d 459, 463 (5th Cir. 2006) (quoting Wilson v. Seiter, 501 U.S.
294, 297 (1991)).
6
Banuelos v. McFarland, 41 F.3d 232, 235 (5th Cir. 1995) (citing Mendoza v. Lynaugh,
989 F.2d 191, 193-95 (5th Cir.1993)).
7
See Farmer v. Brennan, 511 U.S. 825, 837-40 (1994); Arenas v. Calhoun, 922 F.3d
616, 620 (5th Cir. 2019) (quoting Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006));
Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991).
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