Mudd vs. Cockrell, (5th Cir. 2003)

Docket Number: 02-21370

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* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR .

R. 47.5.4. United States Court of Appeals Fifth Circuit FILED May 30, 2003 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-21370 Summary Calendar ROBERT LEE MUDD, Plaintiff-Appellant, versus JANIE COCKRELL; ALFRED M. STRINGFELLOW; DR. LANNETTE LINTHICUM; GLENDA M. ADAMS, ALLEN HIGHTOWER, Defendants-Appellees. Appeal from the United States District Court for the Southern District of Texas USDC No. H-01-CV-2128 Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM: * Robert Lee Mudd, Texas prisoner # 424596, appeals the district court§ 1983 complaint in which he alleged failure to provide a humane and constitutional healthcare system. More specifically, Mudd alleged negligence and deliberate indifference to his serious medical needs via the defendantsÂ’ failure to provide adequate medical care and treatment to all prisoners infected with the Hepatitis C virus (HCV), in violation of the constitution and the Americans with Disabilities Act (ADA). The district court ordered service on only three of the named defendants, Lannette Linthicum, Glenda M. Adams, and Allen Hightower, all of whom moved for summary judgment. As Mudd did not present any evidence of deliberate indifference to serious medical needs stemming from the creation or management of the prisonÂ’s health care system, particularly, its method for treating inmates with HCV, he cannot prevail on his arguments (1) that the district court improperly assessed credibility in ruling on defendantsÂ’ motion for summary judgment, (2) that the district court improperly decided disputed facts, and (3) that there were material, disputed, factual issues. See Estelle v. Gamble , 429 U.S. 97 , 106 (1976); Varnado v. Lynaugh , 920 F.2d 320, 321 (5th Cir. 1991). Nor can he prevail on his arguments that the district court improperly allowed the defendants to supplement their motion for summary judgment, and that the district court improperly dismissed defendants Adams and Hightower, and should have allowed him to add defendants. Mudd cites no procedural rules or cases indicating that the defendantsÂ’ should not have been allowed to supplement their original motion. Moreover, there was no new evidence attached to the defendantsÂ’ reply. Thus, there was no reason for the court not to accept the defendantsÂ’ reply, whether characterized as a Â“supplementÂ” or not. Mudd argues that the district court improperly dismissed Adams and Hightower and should have allowed him to amend his complaint to include all other members of the Correctional Managed Health Care Committee responsible for the implementation of the HCV treatment policy. He does not state who those additional committee members might be. As Mudd has made only conclusional allegations but has not shown how the policies at issue are unconstitutional, the inclusion of Adams and Hightower and/or the addition of other committee members could not have saved his claim from dismissal. See MartinÂ’s Herend Imports, Inc. v. Diamond & Gem Trading U.S.A. Co. , 195 F.3d 765, 771 (5th Cir. 1999)(court has discretion to deny a motion to amend if it is futile). AFFIRMED.

No. 02-21370