UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________

No. 98-40452 Summary Calendar _____________________

RAYMOND PETER GODAIRE,

Plaintiff-Appellant,

versus

E. EDE; T. PORTER, Chief Classification Officer; WAYNE ULRICH, Unit Health Administrator; H. CANTU, Doctor,

Defendants-Appellees. _________________________________________________________________

Appeal from the United States District Court for the Eastern District of Texas (1:95-CV-206) _________________________________________________________________

December 8, 1999

Before SMITH, BARKSDALE, and PARKER, Circuit Judges.

PER CURIAM:*

Raymond Peter Godaire (TDCJ # 613522), pro se, contests the

summary-judgment dismissal of his civil rights complaint, in which

he alleges that in retaliation for his legal activities, defendants

conspired to deny him medical treatment and medically-required

housing. (Godaire’s motion to “amend” his appeal, and the various

relief requested therein, and for this court to take judicial

notice of various filings in this and other actions, is DENIED.

His motion to file his reply brief out-of-time is GRANTED. The

clerk is directed to file only that reply brief which was tendered

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. to the court on 23 June 1999.)

Godaire contends that the district court impermissibly granted

summary judgment based on credibility determinations. We review a

summary judgment de novo, applying the same standard as the

district court. E.g., Melton v. Teachers Ins. & Annuity Ass’n of

Am.,

(5th Cir. 1997). Such judgment is proper if

the summary judgment record presents no genuine issue of material

fact and if, viewing that record in the light most favorable to the

non-movant, the movant is entitled to a judgment as a matter of

law. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett,

(1986). A factual dispute will preclude summary judgment if,

based on the evidence, a reasonable juror could return a verdict

for the non-movant. Anderson v. Liberty Lobby, Inc.,

(1986). In this regard, the court may neither weigh the

evidence nor make credibility determinations.

.

The district court determined that defendants were entitled to

qualified immunity because Godaire had failed to establish Eighth

Amendment deliberate indifference. To state a claim for the

unconstitutional denial of medical treatment, a convicted prisoner

must allege that care was denied or delayed and that this

constituted deliberate indifference to his serious medical needs.

See Estelle v. Gamble,

(1976). A prison

official acts with deliberate indifference “only if he knows that

inmates face a substantial risk of serious harm and [he] disregards

that risk by failing to take reasonable measures to abate it”.

Farmer v. Brennan,

(1994).

2 Summary judgment is proper on the claims that defendants

conspired to withhold prescribed medical treatment. Godaire’s

conclusional conspiracy allegations are not supported by any

evidence. See Copsey v. Swearingen,

(5th Cir.

1994).

With respect to withholding such treatment claims against Drs.

Ede and Cantu (unit physicians), the district court concluded that

the summary-judgment evidence showed a pattern of medical care

which refuted the inadequate treatment claims. Although some of

those claims are based on a lack of, or inadequate, treatment,

Godaire alleged, under penalty of perjury, that, in order to punish

him for his legal activities, the defendant doctors deliberately

failed to enter his prescriptions in the computer. By dismissing

the allegations, the district court apparently made a credibility

determination that they were untrue, which is, as noted,

impermissible for summary judgment. See Anderson,

.

On the other hand, such judgment was proper for the claim

against Ulrich (health administrator) for the alleged withholding

of prescribed soft-soled shoes. Godaire does not show that Ulrich

acted with deliberate indifference, because the summary judgment

record does not show that the denial of the shoes created a

“substantial risk of serious harm”. See Farmer,

.

For the housing-classification claim, the district court

concluded that Godaire had not shown deliberate indifference on the

part of Porter (chief of classification), because (1) the summary

judgment evidence did not support Godaire’s claim that he had

3 fallen down stairs in June 1993, as a result of his upper-floor

assignment; and (2) that assignment lasted for only two months and

was perhaps the result of a housing shortage. But, again,

accepting Godaire’s verified pleadings as true, the summary

judgment evidence is conflicting with regard to whether he had

fallen as a result of the assignment. Further, that the assignment

may have lasted only two months does not necessarily negate the

allegation that it was made deliberately and with a retaliatory

motive. Accordingly, summary judgment is not proper for this

claim.

The district court did not abuse its discretion by denying

Godaire’s motion for leave to amend his complaint to add additional

defendants, by refusing to rule on Godaire’s discovery motions

prior to granting summary judgment, or by staying discovery pending

ruling on qualified immunity.

And, we do not have jurisdiction to consider Godaire’s claim

that the court erred by denying his numerous requests for temporary

restraining orders. See Matter of Lieb,

(5th

Cir. 1990).

Finally, we reject Godaire’s attempt to present allegations

against unidentified and unserved individuals regarding denial of

access to the courts in connection with the prosecution of his case

in the district court, based on claims of limited access to a law

library and destruction of his legal filings and evidence while he

was housed at a halfway house.

For the foregoing reasons, the portion of the judgment

4 dismissing the claims against Porter and Drs. Ede and Cantu for

deliberate indifference to Godaire’s serious medical needs by

withholding prescribed housing and medical treatment is VACATED.

In all other respects, the judgment is AFFIRMED.

AFFIRMED IN PART; VACATED and REMANDED IN PART

5