IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-30501 Summary Calendar

ELMO HUMPHREY, III,

Plaintiff-Appellee,

versus

LOUISIANA STATE PENITENTIARY; ET AL.,

Defendants,

HAND, DR.; TARVER, DR.; WIEST, DR.; BURL CAIN,

Defendants-Appellants.

-------------------- Appeal from the United States District Court for the Middle District of Louisiana USDC No. 99-CV-450-B -------------------- January 10, 2002 Before DUHÉ, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:1

Elmo Humphrey, III, filed a civil rights complaint against the

defendants, alleging that they were deliberately indifferent to his

serious medical needs in refusing and/or misdiagnosing and

improperly treating his medical condition. The defendants appeal

the district court’s denial of their motion to dismiss based on

qualified and Eleventh Amendment immunity.

1 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. We have jurisdiction to review this order to the extent it

turns on an issue of law. See Mitchell v. Forsyth,

(1985). We review de novo the district court’s denial of

the motion to dismiss.

We note first that the district court failed to consider the

adequacy of Appellee’s allegations under the rubric of Schultea v.

Wood,

(5th Cir. 1995) (en banc) (imposing a

“heightened pleading” standard on plaintiff when claims are met by

a qualified immunity defense).

Humphrey made inconsistent allegations that the defendant

doctors failed to treat him and treated him for a condition

different than the one he suffered. Humphrey’s allegation that the

doctors misdiagnosed and failed to properly treat his gangrene and,

instead, treated him for hemorrhoids amounts, at most, to

malpractice, neglect, or negligence, not deliberate indifference.

This does not establish an unconstitutional denial of care. See

Varnado v. Lynaugh,

(5th Cir. 1991). To the

extent that Humphrey alleged that one of the doctors may have

refused to treat him, read in the context of all of Humphrey’s

allegations that he was misdiagnosed and treated for hemorrhoids,

the refusal-to-treat appears to be an allegation that a doctor did

not treat Humphrey when or in a manner that Humphrey wanted. At

most, this amounts to a disagreement by Humphrey with the type and

timing of the treatment he received, and is insufficient to state

an unconstitutional denial of medical care. See Varnado,

.

2 Humphrey thus has not stated a valid claim of deliberate

indifference to medical needs in connection with the defendant

doctors’ treatment of his medical condition. Accordingly, the

defendant doctors were entitled to qualified immunity. See Harris

v. Victoria Indep. Sch. Dist.,

, 223 (5th Cir. 1999).

The district court adopted the magistrate judge’s conclusion

that Humphrey’s allegation that Warden Cain had in place a

deficient medical delivery policy was sufficient to state a claim.

However, in light of Humphrey’s allegation that he actually

received treatment, albeit for a condition other than the one he

actually suffered, his conclusional allegation regarding a

deficient medical delivery policy must fail. Even if the Warden

had such a deficient policy, Humphrey failed to allege that the

policy caused his injury or a constitutional violation by the

defendant doctors.

Because Humphrey failed to allege a constitutional violation

by the defendant doctors or by Warden Cain, the district court

erred in concluding that the Appellants were not entitled to

qualified immunity.

We VACATE the district court’s denial of the defendants’

motion to dismiss based on qualified immunity. As this leaves no

remaining federal claims involved in the case, the district court

should decline to exercise jurisdiction under

(c)(3) over the supplemental state-law claims. We VACATE the

denial of the motion to dismiss based on Eleventh Amendment

3 immunity and REMAND those claims to district court for dismissal

without prejudice.

VACATED AND REMANDED.

4