Patrick A. Guardiola, TDCJ # 1644751, Plaintiff, v. Rick Thaler, et al., Defendants Civil No. W-11-CA-171 Signed November 21, 2012 Counsel Patrick A. Guardiola, Livingston, TX, pro se. Shane D. Neldner, Texas Attorney General, Austin, TX, for Defendants. Smith, Walter S., Jr., United States District Judge ORDER *1 Before the Court for consideration are the Defendants' Motion for Summary Judgment (Doc. 42), Plaintiff's Motion for Leave to File A Supplemental Pleading (Doc. 45), Plaintiff's “Motion for Order to Preserve Electronically Stored Information” (Doc. 49), Plaintiff's Motion for Entry of Default (Doc. 56), Plaintiff's Motion for an Order Compelling Discovery (Doc. 57), Plaintiff's “Motion to Amend Order to Compel Discovery and Declaration for Entry of Default” (Doc. 59), the Defendants' Motion for a Protective Order (Doc. 61), and Plaintiff's motions for default judgment against Defendants Terrence Moore and Rick Thaler (Docs. 65 and 70). Plaintiff has been granted leave to proceed in forma pauperis in this civil rights case and is proceeding pro se. I. Background Plaintiff is currently incarcerated at the Polunski Unit of the Texas Department of Criminal Justice, Correctional Institutions Division (“TDCJ”). Plaintiff's allegations and claims in this case, however, arise in connection with his stay at the TDCJ's Marlin Unit. (See Doc. 1). Plaintiff sues the following Defendants in his Complaint: (1) Rick Thaler, Director of the Texas Department of Criminal Justice, Correctional Institutions Division; (2) Assistant Regional Director B. Armstrong; (3) J. Markum, Assistant Warden of the Marlin Unit; (4) Captain Kevin L. Benjamin; (5) Lieutenant Jeffrey Furr, Sr.; (6) Lieutenant Terrence L. Moore; (7) Lieutenant Joshua S. Morales; (8) Sergeant Dennis F. Daly, Jr.; (9) Sergeant Alphonso L. Stevens; and (10) Dr. Richard Tracy. (Id.). Plaintiff alleges in the Complaint that on December 10, 2010, he “suffered excruciating abdominal pain, being unable to eat and bedridden for approximately 5 days.” (Doc. 1, Supplement at 5). He complains that the cause of this condition “is due to the unreasonable time [he and other prisoners] are allowed to consume hot meals.” (Id.). Plaintiff further alleges that he suffered from his abdominal pain for “another 30 days without the proper and appropriate follow up examinations, diagnosis, and treatment affecting his daily activity” and that he “continues to suffer from these attacks” due to delays in obtaining appropriate medical treatment. (Id.). Plaintiff asserts claims of: (1) excessive force pursuant to the Eighth Amendment; (2) deliberate indifference to his health and safety based on the policy of allowing inmates a limited time to eat; (3) deliberate indifference based on allegations of delay or denial of adequate medical care; and (4) liability based on a theory of “state created danger.” (Doc. 1, Supplement). Plaintiff seeks injunctive relief as well as monetary relief in the form of compensatory and punitive damages, (Id., Complaint at 4). The Defendants have filed a motion for summary judgment, supported by competent summary judgment evidence. (Docs. 42). The Defendants contend that: (1) Defendants Thaler and Armstrong are entitled to Eleventh Amendment immunity with respect to Plaintiff's claims seeking damages against them in their official capacities; (2) Plaintiff has failed to state an excessive force claim; (3) Plaintiff cannot establish any of his claims of deliberate indifference claims; (4) Plaintiff cannot prevail on his “state-created danger” theory; and (5) the Defendants are entitled to qualified immunity with respect to Plaintiff's claims against them in their individual capacities. (Id. at 4-18). Plaintiff responds in general that genuine issues of fact exist with respect to his claims. (Doc. 52, Brief). II. Discussion A. Preliminary Motions 1. Motion to File Supplemental Pleadings *2 On January 23, 2012, pursuant to Federal Rule of Civil Procedure 15(c) and (d), Plaintiff filed a Motion for Leave to File Supplemental Pleadings. (Doc. 45). Therein, Plaintiff seeks to add claims against Defendant Furr arising out of acts and events occurring on or after December 31, 2011. (Id.). Specifically, Plaintiff asserts a claim of retaliation against Defendant Furr for filing the instant Complaint by falsifying certain documents that ultimately led to a “fabricated” disciplinary proceeding against Plaintiff. (Id. at 1-2). At the time Plaintiff filed the motion for leave to supplement, the disciplinary hearing was pending. (Id. at 3). On June 13, 2012, Plaintiff filed a “Supplemental Pleading,” stating that he had been found guilty of two charges brought against him in connection with the “fabricated” disciplinary hearing. (Doc. 64). Plaintiff asserts that he has exhausted the prison grievance process with respect to challenging the disciplinary hearing and the resulting punishment. (Id.). Plaintiff seeks both monetary and equitable relief in connection with his supplemental pleadings. (Doc. 45 at 4; Doc. 64 at 2). The Court finds that Plaintiff's motion is properly construed as a motion to supplement his Complaint pursuant to Rule 15(d) because it concerns events that occurred after the filing of the Complaint. See Dean v. Ford Motor Credit Co., 885 F.2d 300, 302 (5th Cir. 1989). Rule 15(d) provides in pertinent part that “[o]n motion and reasonable notice, the court may, on just terms permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented.” Fed.R.Civ.P. 15(d). By Order entered on July 1, 2011 (Doc. 6), the Court instructed Plaintiff that he must obtain leave of Court to file a supplemental complaint in this case and that he must attach a proposed amended or supplemental complaint to the motion requesting leave to file. Plaintiff, however, failed to attach a proposed supplemental complaint to his motion. His motion seeking leave, therefore, is denied based on his failure to comply with the July 1, 2011 Order. Even assuming that Plaintiff complied with the Court's July 1, 2011 Order, his motion for leave remains without merit. While the text of Federal Rule of Civil Procedure 15(a)[1] provides that leave should be freely granted to amend a complaint, the text of Rule 15(d) does not similarly provide for granting leave to file a supplemental pleading. Burns v. Exxon Corp., 158 F.3d 336, 343 (5th Cir. 1998). The Fifth Circuit, nevertheless, has indicated that the same factors considered in a Rule 15(a) inquiry apply equally to Rule 15(d). See Chemetron Corp. v. Business Funds, Inc., 682 F.2d 1149, 1194 (5th Cir. 1982) (citation omitted), vacated on unrelated grounds by 460 U.S. 1007; cf. United States v. Hicks, 283 F.3d 380, 385 (D.C. Cir. 2002) (acknowledging that “courts often simply apply the principles of 15(c) to supplemental pleadings”). These factors include undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments granted earlier, undue prejudice to the opposing party, and futility. Chemetron, 682 F.2d at 1194 (citations omitted). Leave to supplement a complaint should not be granted where the complainant attempts to present “new and different cause[s] of action.” Griffin v. County Sch. Bd. of Prince Edward County, 377 U.S. 218, 226 (1964). *3 The Court finds that Plaintiff's motion to supplement should be denied as it is clear that Plaintiff seeks to raise new and different causes of action such as retaliation in connection with the “fabricated” disciplinary hearing. See Garcia v. Hackman, No. C-10-311, 2011 WL 2457918, at * 19 (S.D. Tex. Jun. 16, 2011) (quoting Griffin, 377 U.S. at 226). Furthermore, Plaintiff's motion to supplement is futile because he did not exhaust his administrative remedies with respect to his new claims against Defendant Furr within the short time that elapsed between the incident and his submission of this motion for leave to supplement. See Ford v. Register, No. 3:10-CV-390, 2010 WL 5678669, at *5 (N.D. Tex. Dec. 23, 2010) (motion to amend prisoner civil rights complaint futile where claim unexhausted) (citations omitted), adopted by 2011 WL 323575 (N.D. Tex. Jan. 31, 2011). In his supplemental pleading filed on June 13, 2012, Plaintiff indicates that he recently exhausted his remedies with respect his claims challenging Defendant Furr's conduct in connection with the disciplinary hearing. (Doc. 64). The Court finds, however, that allowance of Plaintiff's supplemental complaint at this late date would unduly prejudice the Defendants and unduly delay the disposition of Plaintiff's claims raised in the original complaint. Accordingly, for the foregoing reasons, Plaintiffs motion seeking leave to supplement his complaint (Doc. 45) is denied.[2] 2. Motion to Preserve Electronically Stored Information Plaintiff asks the Court to order the Defendants to preserve a video recording which purportedly depicts the incident on December 31, 2011, that led to Plaintiff's disciplinary proceeding. (Doc. 49). As discussed above, this Court denied Plaintiff's motion seeking leave to supplement his Complaint with claims relating to the disciplinary proceeding. Accordingly, Plaintiff's motion seeking leave to preserve the video recording (Doc. 49) is denied as moot. 3. Motions to Compel Discovery and for Protective Order Plaintiff asks the Court to compel the Defendants to produce documents consisting of: (1) grievances filed against Defendant Stevens; (2) certain medical and incident records; (3) certain electronically-stored information; and (4) Defendant Moore's full answer to interrogatories. (Doc. 57). In an amended motion to compel, Plaintiff complains about not receiving statements from various non-party witnesses regarding their knowledge of Plaintiff's medical condition. (Doc. 59). With regard to Plaintiff's first motion to compel, the Defendants respond that: (1) Plaintiff's discovery request with respect to Defendant Stevens is overbroad, irrelevant, and not reasonably calculated to lead to the discovery of admissible evidence; (2) Plaintiff's request for certain medical and incident records is overbroad and unduly burdensome; and (3) no records exist that are responsive to Plaintiff's request for certain video recordings. (Doc. 62). The Defendants further state that Defendant Moore's response to Plaintiff's interrogatories was mailed to Plaintiff on August 24, 2012. (Doc. 72). Plaintiff has made no further objections with respect to the interrogatories propounded on Defendant Moore. The Defendants response to Plaintiff's amended motion to compel are as follows: (1) the cited Federal rules do not provide authority for Plaintiff's requests from non-parties; (2) Plaintiff's requests are vague and overbroad; (3) Plaintiff's requests are not presented in the proper form and are, therefore, inadmissible; (4) Plaintiff's request impermissible discovery that require the Defendants' counsel to generate a document in aid of Plaintiff's case; and (5) Plaintiff is fully capable of contacting the non-party individuals. (Doc. 61). The Defendants move the Court for a protective order prohibiting Plaintiff from serving the Defendants with such burdensome discovery. (Id.). *4 The Court finds that Plaintiff's motion and amended motion to compel are without merit based on the sound reasons advanced by the Defendants. Plaintiff otherwise has failed to: (1) comply with Local Rule CV-26(a), which requires Plaintiff to attach his written formal discovery request to the motions to compel; and (2) provide a certification pursuant to Federal Rule of Civil Procedure 37(a)(1) that he conferred with opposing counsel to resolve any discovery dispute. Plaintiff's motions to compel (Docs. 57 and 59), therefore, are denied. Because this case is subject to dismissal for the reasons discussed below, it is unnecessary to issue a protective order with regard to Plaintiff's discovery requests. Accordingly, the Defendants' motion for a protective order (Doc. 61) is denied. 4. Motions for Entry of Default and for Default Judgment Plaintiff seeks entries of default and/or default judgment against the Defendants based on their purported insufficient responses to Plaintiff's discovery requests. (Docs. 56, 59, 65, and 70). The record reflects that the Defendants have each been responsive to Plaintiff's discovery requests. Plaintiff has failed to demonstrate an entitlement to the drastic remedies of default judgment against any named Defendant. Accordingly, Plaintiff's motions (Docs. 56, 59, 65, and 70) are denied. B. Motion for Summary Judgment Title 42 U.S.C. § 1983 creates a cause of action against any person who, under color of law, causes another to be deprived of a federally protected constitutional right. Section 1983 provides, in pertinent part: Every person who, under color of any statute, ordinance, regulation, custom or usage, of any state ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws shall be liable to the party injured in an action at law, suit in equity or other proper proceeding for redress .... Section 1983 was promulgated to prevent “...[a government official's] [m]isuse of power, possessed by virtue of state law and made possible only because the [official] is clothed with the authority of state law.” Johnston v. Lucas, 786 F.2d 1254, 1257 (5th Cir. 1986); Whitley v. Albers, 475 U.S. 312 (1986) (8th Amendment); Davidson v. Cannon, 474 U.S. 344 (1986) (14th Amendment). Section 1983, however, does not grant a cause of action for every action taken by a state official. Whitley, 475 U.S. at 319. Only two allegations are required in order to state a cause of action under 42 U.S.C. § 1983. “First, the Plaintiff must allege that some person has deprived him of a federal right. Second, he must allege that the person who has deprived him of that right acted under color of state or territorial law.” Gomez v. Toledo, 446 U.S. 635, 640 (1980); Manax v. McNamara, 842 F.2d 808, 812 (5th Cir. 1988). 1. Summary Judgment Standards The Defendants' motion for summary judgment is governed by Rule 56 of the Federal Rules of Civil Procedure. Rule 56 mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a sufficient showing of the existence of an element essential to the party's case, and on which that party will bear the burden at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). The moving party has the burden of showing that summary judgment is appropriate. See Martco Ltd. Partnership v. Wellons, Inc., 588 F.3d 864, 871 (5th Cir. 2009) (citing Celotex, 477 U.S. at 323). Summary judgment is appropriate when the “pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2); Celotex, 477 U.S. at 322-23. *5 If the moving party meets its initial burden, “[t]he nonmoving party ‘must identify specific evidence in the record and articulate the manner in which that evidence supports that party's claim.’ ” Peterson v. City of Forth Worth, Tex., 588 F.3d 838, 844 (5th Cir. 2009) (quotation omitted). “The identified evidence ‘must be sufficient to sustain a finding in favor of the nonmovant on all issues as to which the nonmovant would bear the burden of proof at trial.’ ” Id. The non-movant must do more than simply show that there is some “metaphysical doubt” as to the material facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). “A fact is material only if its resolution would affect the outcome of the action,... and an issue is genuine only ‘if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party.’ ” Wiley v. State Farm Fire and Cas. Co., 585 F.3d 206, 210 (5th Cir. 2009) (internal citation and quotations omitted). In deciding whether a genuine fact issue exists, a reviewing court must consider “all disputed facts and inferences in the light most favorable to the nonmovant.” Hill v. Carroll County, Miss., 587 F.3d 230, 233 (5th Cir. 2009) (citing Matsushita Elec. Indus. Co., 478 U.S. at 587). However, factual controversies are resolved in favor of the non-movant “only ‘when both parties have submitted evidence of contradictory facts.’ ” Alexander v. Eeds, 392 F.3d 138, 142 (5th Cir. 2004) (quoting Olabisiomotosho v. City of Houston, 185 F.3d 521, 525 (5th Cir. 1999)). However, “conclusory allegations” or “unsubstantiated assertions” do not meet the non-movant's burden. Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 399 (5th Cir. 2008). Instead, the nonmoving party must present specific facts which show “the existence of a genuine issue concerning every essential component of its case.” American Eagle Airlines, Inc. v. Air Line Pilots Ass'n, lnt'l, 343 F.3d 401, 405 (5th Cir. 2003) (citation and internal quotation marks omitted). In the absence of any proof, a reviewing court will not assume “that the nonmoving party could or would prove the necessary facts,' and will grant summary judgment ‘in any case where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant.’ ” Boudreaux, 402 F.3d at 540 (quoting Little, 37 F.3d at 1075) (emphasis in original). 2. Eleventh Amendment Immunity The Eleventh Amendment bars claims brought pursuant to § 1983 by a citizen against a state and its alter egos. Aguilar v. Texas Dept. of Criminal Justice, 160 F.3d 1052, 1054 (5th Cir. 1998); Champagne v. Jefferson Parish Sheriff's Office, 188 F.3d 312, 313 (5th Cir. 1999). Lawsuits against individuals in their official capacity are typically an alternative means of pleading an action against the governmental entity involved. Anderson v. Pasadena Independent School Dist., 184 F.3d 439, 443 (5th Cir. 1999); Baker v. Putnal, 75 F.3d 190, 195 (5th Cir. 1996). Therefore, the Eleventh Amendment bars a suit against a state official when “the state is a real, substantial party in interest.” Id. (quoting Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101-02 (1984)). Consequently, as when a state itself is named as a defendant, a suit against a state official acting in his official capacity is in fact a suit against the state and is barred regardless of whether the suit seeks damages or retroactive injunctive relief. Aguilar, 160 F.3d at 1054; see Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989) (“a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office. [citation omitted] As such, it is no different from a suit against the State itself”). *6 To the extent Plaintiff sues Defendants Thaler, Armstrong, and any other defendant in their official capacities, such claims seeking damages against them are clearly barred by the Eleventh Amendment. Accordingly, these Defendants are entitled to summary judgment with respect to any claims seeking damages against them in their official capacities. 3. Qualified Immunity When the defense of qualified immunity is at issue “plaintiffs suing government officials in their individual capacities must allege specific conduct giving rise to a constitutional violation.” Anderson, 184 F.3d at 443; Schultea v. Wood, 47 F.3d 1427, 1434 (5th Cir. 1995). In order to survive a motion to dismiss, the alleged wrongful actions “must be pleaded with ‘factual detail and particularity,’ not mere conclusionary allegations.” Id. Qualified immunity is not merely a defense to liability, but a shield from suit. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). The determination of whether qualified immunity is applicable to any defendant is, therefore, a matter that is initially determined by the court, as a matter of law, long before any trial. Hunter v. Bryant, 502 U.S. 224, 228 (1991). A public official is entitled to qualified immunity if his conduct violates no clearly established statutory or constitutional right of which a reasonable person would have known. Sorenson v. Ferrie, 134 F.3d 325, 327 (5th Cir. 1998); Salas v. Carpenter, 980 F.2d 299, 305 (5th Cir. 1992). After a defendant has raised the defense of qualified immunity, the trial court undertakes a two-step analysis. Petta v. Rivera, 143 F.3d 895, 899-900 (5th Cir. 1998) (citing Siegert v. Gilley, 500 U.S. 226, 231-32 (1991)). First, the Court determines whether, under current law, the plaintiff has alleged a constitutional violation at all. Petta, 143 F.3d at 899 (quoting Siegert, 500 U.S. at 232). Only if the plaintiff has crossed this threshold, does the Court move to the second stage of the analysis, which requires two separate inquiries: (1) whether the allegedly violated right was “clearly established” at the time of the incident; and, if so, (2) whether the defendant's conduct was objectively unreasonable in light of the clearly established law. Hare v. City of Corinth, 135 F.3d 320, 326 (5th Cir. 1998). In making this determination, “the court should ask whether the [defendants] acted reasonably under settled law in the circumstances, not whether another reasonable, or more reasonable, interpretation of the events can be constructed five years after the fact.” Hunter, 502 U.S. at 228. “[I]f officers of reasonable competence could disagree on this issue, immunity should be recognized.” Babb v. Dorman, 33 F.3d 472, 477 (5th Cir. 1994) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). The qualified immunity standard is broad enough to encompass mistakes in judgment by protecting “all but the plainly incompetent or those who knowingly violate the law.” Hunter, 502 U.S. at 229 (quoting Malley, 475 U.S. at 341). Under the first step, a court must determine whether a constitutional violation has been asserted. As discussed below, Plaintiff has failed to state a claim for relief against the Defendants with respect to any of the underlying constitutional claims. Because Plaintiff cannot satisfy the threshold inquiry, the individual defendants are entitled to qualified immunity from Plaintiff's constitutional claims. Excessive Force *7 The Supreme Court has held that “not every government action affecting the interests or well-being of a prisoner is subject to Eighth Amendment scrutiny .... ‘After incarceration, only the unnecessary and wanton infliction of pain constitutes cruel and unusual punishment forbidden by the Eighth Amendment.’ ” Whitley v. Albers, 475 U.S. 312, 319 (1986) (citing Ingraham v. Wright, 430 U.S. 651, 669-70 (1977)). The Supreme Court subsequently defined this unnecessary and wanton infliction of pain requirement by focusing the core judicial inquiry in excessive use of force claims on “whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.” Whitley, 475 U.S. at 320-21. In determining whether an Eighth Amendment excessive force claim has been made, the following factors should be looked to: “(1) the extent of the injury suffered; (2) the need for the application of force; (3) the relationship between the need and the amount of force used; (4) the threat reasonably perceived by the responsible officials; and (5) any efforts made to temper the severity of a forceful response.” Gomez v. Chandler, 163 F.3d 921,923 (5th Cir. 1999) (quoting Hudson v. McMillian, 962 F.2d 522, 523 (5th Cir. 1992)). While the injury suffered does not have to be serious, some physical injury is an indispensable element of an Eighth Amendment excessive force claim. Id.; see Knight v. Caldwell, 970 F.2d 1430, 1432-33 (5th Cir. 1992) (Hudson “does not affect the rule that requires proof of injury, albeit significant or insignificant”; “injury” properly defined as physical injury). The core inquiry is not whether a certain amount of injury resulted, but instead whether force was applied in either a good faith effort to maintain discipline or maliciously and sadistically very the purpose of causing harm. Wilkins v. Gaddy, ___ U.S. ____, 130 S. Ct. 1175, 1178-80 (2010). See also Gomez, 163 F.3d at 924 (explaining that in order “to support an Eighth Amendment excessive force claim a prisoner must have suffered from the excessive force a more than de minimis physical injury, but there is no categorical requirement that the physical injury be significant, serious, or more than minor”). Plaintiff alleges that Defendants Markum, Furr, Moore, Morales, Daly, and Stevens subjected him to excessive force by either “allowing the continuance of abuse of custom or policy” or by actually abusing custom and policy in giving Plaintiff an insufficient amount of time to eat his food. (Doc. 1, Supplement). Plaintiff's allegations, however, fail to state an Eighth Amendment claim of excessive force. No competent evidence has been presented to show that any Defendant applied force of any kind, much less in a sadistic and malicious fashion, with respect to the prison dining policies and customs. See McFadden v. Lucas, 713 F2d 143, 146-47 (5th Cir. 1983). Even after viewing the evidence in a light most favorable to Plaintiff, he cannot establish a genuine issue of material of fact with respect to his Eighth Amendment claim of excessive force. Accordingly, the Defendants are entitled to qualified immunity with respect to this claim. Deliberate indifference (Health and Safety) Plaintiff claims that the Defendants acted with deliberate indifference to his health and safety when they created or continued a policy of allowing Plaintiff and other offenders only twenty minutes from the time they entered the dining hall to eat meals. (Doc. 1, Supplement at 6-10). As a result of the policy, Plaintiff claims that he was forced to eat hot meals too quickly and he suffered from the following: intense pain similar to kidney stones, choking, self-biting, burns, acid reflux, ulcers, intestinal disorders, and weight loss. (Id. at 7-10). *8 The Eighth Amendment prohibits cruel and unusual punishment. U.S. Const. amend. VIII. “Although the constitution ‘does not mandate comfortable prisons,’..., conditions of confinement ‘must not involve the wanton and unnecessary infliction of pain.’ ” Palmer v. Johnson, 193 F.3d 346, 351 (5th Cir. 1999) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 and 349 (1981)). An inmate must satisfy both an objective and subjective component in order to demonstrate a violation of the Eighth Amendment by a prison official. First, the objective component requires an inmate to allege and establish a sufficiently serious deprivation. Wilson v. Seiter, 501 U.S. 294, 298 (1991). To constitute a sufficiently serious deprivation, “a prison official's act or omission must result in the denial of ‘the minimal civilized measure of life's necessities.’ ” Palmer, 193 F.3d at 352 (internal quotations and citation omitted). While there is no precise definition as to what types of deprivations deny an inmate the “minimal civilized measures of life necessities, “[t]he Eighth Amendment's prohibition against cruel and unusual punishment requires prison officials to provide ‘humane conditions of confinement,’ ensuring that ‘inmates receive adequate food, clothing, shelter, and medical care....’ ” Palmer, 193 F.3d at 351-352 (quoting Farmer v. Brennan, 511 U.S. 825, 832 (1994)). “[E]xtreme deprivations are required” in order to meet the objective component of a conditions-of-confinement claim.” Davis v. Scott, 157 F.3d 1003, 1006 (5th Cir. 1998) (internal quotations and citation omitted). Second, the subjective component requires that a prison official must act with a sufficiently culpable state of mind. Farmer, 511 U.S. at 831. In prison conditions cases, the culpable state of mind to be established is one of deliberate indifference, which is defined as knowing and disregarding and excessive risk to inmate's health and safety. Id. “ ‘To establish deliberate indifference ..., the prisoner must show that the defendants (1) were aware of facts from which an inference of an excessive risk to the prisoner's health or safety could be drawn and (2) that they actually drew an inference that such potential for harm existed.’ ” Palmer, 193 F.3d at 352 (quoting Bradley v. Puckett, 157 F.3d 1022, 1025 (5th Cir. 1998)). Because “[d]eliberate indifference encompasses only the unnecessary and wanton infliction of pain repugnant to the conscience of mankind, ... negligence and even gross negligence does not implicate the Constitution and does not provide a basis for a § 1983 claim.” Howard v. Mancuso, No. 10-787-LC, 2011 WL 1100140, at *2 (W.D. La. Feb. 22, 2011) (citing Farmer; 511 U.S. at 835). Based on a review of the competent summary judgment evidence presented, Plaintiff has failed to satisfy the objective requirement of deliberate indifference by failing to allege and establish a sufficiently serious deprivation. TDCJ policy provides that inmates are provided with three meals per day and that they are allowed a total of twenty minutes to be present in the dining hall. (Doc. 42, Exs. A and B). According to Captain Benjamin, inmates have approximately 12-16 minutes to consume their meals. (Doc. 42, Ex. A). Captain Benjamin has never observed an officer harassing an inmate or otherwise forcing an inmate to hurry up and finish eating. (Id.). He further states: *9 I supervise Sergeant Stevens, and I know that Sergeant Stevens is following TDCJ policy. The same is said for Lieutenant Furr, Terrence Moore, Lieutenant Morales, and Sergeant Daly. None of these officers have been violating TDCJ dining hall policy. They have not been giving offenders an unreasonably short time in which to eat their food. These officers have not been harassing offenders by ordering them to eat faster, in an unsafe manner, or to eat food that is too hot. To my knowledge, they have never been disciplined for the way they run the dining hall. (Id.). While claiming that he has suffered numerous maladies after being forced too consume hot meals too quickly, Plaintiff has come forward with no competent summary judgment evidence to show that he was ever medically treated for choking, self-biting, or burns in the mouth. (See Doc. 42, Exs. C and D; Doc. 52, Ex. A). No evidence has been presented indicating that Plaintiff's claims of ulcers and stomach maladies were caused by the short amount of time afforded to Plaintiff to eat or that any medical personal at the prison, including Dr. Tracy, diagnosed such an association. The undisputed record reflects that Dr. Tracy diagnosed Plaintiff as suffering from chronic dyspepsia and H. Pylori.[3](Doc. 42. Ex. D). Plaintiff's chronic dyspepsia, according to Dr. Tracy, “could be caused by any number of things, including simply the stress of being in prison, [Plaintiff's] daily consumption of 5 cups of coffee, his preference for spicy foods, or his history of alcoholism and drug abuse.” (Id.). Dr. Tracy prescribed Prilosec to Plaintiff both as a diagnostic tool and a therapeutic drug. (Id.). Medical records, however, reflect that Plaintiff has a history of noncompliance with his medical prescription during the relevant times. (Id. at 153-181). According to Dr. Tracy, Plaintiff's failure to take his medication and otherwise comply with his treatment in a proper manner exacerbated his conditions. (Id., Ex. D). When viewing the evidence in a light most favorable to Plaintiff, he fails to satisfy the objective requirement that any Defendant's acts or omissions denied Plaintiff “the minimal civilized measure of life's necessities” and constituted an extreme deprivation. See Farmer, 511 U.S. at 384; Davis, 157 F.3d at 1006. Plaintiff has come forward with no competent summary judgment evidence showing that any Defendant denied either meals to Plaintiff or timely access to medical care when he exhibited symptoms of distress. The evidence establishes that Plaintiff's medical conditions were not caused or worsened by the amount of time he was allowed to consume his meals. Even if Plaintiff could establish the objective component's requirement of a sufficiently serious deprivation, Plaintiff cannot satisfy the subjective requirement with respect to any of the Defendants. Plaintiff has presented no evidence to establish that any Defendant, with the exception of Dr. Tracy, was aware of the cause of Plaintiff's medical condition.[4] Plaintiff has presented affidavits of several inmate witnesses who purportedly witnessed Plaintiff on December 20, 2010, and September 7, 2011, suffering from abdominal pain, moaning in pain, and vomiting. (Doc. 52, Ex. C). These inmate witnesses further attested, however, that the prison staff was responsive in escorting Plaintiff to medical. (Id.). None of the inmate affidavits show that any of the Defendants knowingly disregarded an excessive risk to Plaintiff's health. *10 Pursuant to the policy of the Correctional Managed Health Care Policy Manual, a medical pass may be issued by a healthcare provider to any offender to meet short or long term medical needs. (Doc. 42, Ex. F). Plaintiff, however, has not shown that he was ever provided a medical pass allowing him more time to eat food or that he ever presented any Defendant with such a pass. These Defendants, therefore, had no reason to believe that Plaintiff required more time to consume his meals based on a legitimate medical reason. Thus, when viewing the evidence in a light most favorable to Plaintiff, he fails to show that the Defendants were aware of facts from which an inference of an excessive risk to the prisoner's health or safety could be drawn and then proceeded to draw an inference that such potential for harm existed. See Palmer, 193 F.3d at 352. At best, the evidence shows that these Defendants may have been negligent in failing to provide Plaintiff with sufficient time to consume his meals. Plaintiff also sues Assistant Regional Director B. Armstrong and many of the correctional officer Defendants in a supervisory capacity for abusing the dining hall customs and policies relating to Plaintiff's deliberate indifference claims. (Doc. 1, Attached Pages). It is well settled, however, that supervisory officials may not be held liable for § 1983 violations under a theory of respondeat superior or vicarious liability, based upon claimed acts or omissions of a tortfeasor. Stewart v. Murphy, 174 F.3d 530, 536 (5th Cir. 1999); see, e.g., Monell v. Dept. of Social Servs., 436 U.S. 658, 692 (1978); Simmons v. Cook, 154 F.3d 805, 808 (5th Cir. 1998) (no respondent superior liability under § 1983); Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983) (“Certainly § 1983 does not give a cause of action based on the conduct of subordinates”). For liability to be established, “the misconduct of the subordinate must be affirmatively linked to the action or inaction of the supervisor.” Southard v. Texas Bd. of Criminal Justice, 114 F.3d 539, 550 (5th Cir. 1997). In the absence of any underlying constitutional violation of deliberate indifference, supervisory or respondeat superior liability cannot be imposed on Regional Director Armstrong or the other supervisory Defendants. See Rios v. City of Del Rio, Tex., 444 F.3d 417, 425-26 (5th Cir. 2006); Becerra v. Asher, 105 F.3d 1042, 1048 (5th Cir. 1997). Finally, to the extent Plaintiff's alleges that a policy or custom is the moving force behind the Defendants' actions, he also cannot state a claim in the absence of establishing an underlying constitutional violation. See City of Cox v. Dallas, 430 F.3d 734, 748 (5th Cir. 2005). In sum, even after viewing the evidence in a light most favorable to Plaintiff, he cannot establish a genuine issue of material of fact with respect to his Eighth Amendment deliberate indifference claim based on the Defendants' failure to give him enough time to consume his meals. Because no such Eighth Amendment violation has been shown, the Defendants are entitled to qualified immunity with respect to this claim. Deliberate Indifference (Medical Needs) Plaintiff claims that Dr. Tracy was deliberately indifferent to his medical needs by delaying or otherwise denying adequate medical care. (Doc. 1, Supplement at 8-9). The “cruel and unusual punishments” clause has been interpreted to mandate the provision of medical care to prisoners. See Stewart, 174 F.3d at 533 (citing Farmer, 511 U.S. at 832) (“cruel and unusual punishments” clause imposes a duty on prison officials to “ensure that inmates receive adequate food, clothing, shelter, and medical care”). Inadequate medical care by a prison doctor can result in a constitutional violation when the doctor's actions amount to “deliberate indifference to (the prisoner's) serious medical needs”, “constitut(ing) the ‘unnecessary and wanton infliction of pain’ proscribed by the Eighth Amendment”. Stewart, 174 F.3d at 533 (quoting Estelle, 429 U.S. at 104). “[T]his is true whether the indifference is manifested by prison doctors in their response to the prisoner's needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed.” Estelle v. Gamble, 429 U.S. 97, 104-105 (1976); Williams v. Treen, 671 F.2d 892, 901 (5th Cir. 1982). The Farmer Court defined the “deliberate indifference” standard, stating that a prison official is not liable “unless the official knows of and disregards an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837. *11 Although inadequate medical treatment may rise to the level of a constitutional violation, malpractice or negligent care does not. Stewart, 174 F.3d at 534. See Mendoza v. Lynaugh, 989 F.2d 191, 193 (5th Cir. 1993) (“It is clear that negligent medical treatment is not a cognizable basis upon which to predicate a section 1983 action”); Williams, 671 F.2d at 901 (“mere negligence in giving or failing to supply medical treatment would not support an action under Section 1983”). “Disagreement with medical treatment does not state a claim for Eighth Amendment indifference to medical needs.” Stewart, 174 F.3d at 537 (quoting Norton v Dimazana, 122 F.3d 286, 292 (5th Cir. 1997)). Not even unsuccessful medical treatment gives rise to a § 1983 cause of action. Varnado v. Lynaugh, 920 F.2d 320, 321 (5thCir. 1991). Furthermore, “[d]elay in medical care can only constitute an Eighth Amendment violation if there has been deliberate indifference [that] results in substantial harm.” Easter v. Powell, 467 F.3d 459, 464 (5th Cir. 2006). “Deliberate indifference encompasses only the unnecessary and wanton infliction of pain repugnant to the conscience of mankind.” Stewart, 174 F.3d at 534 (quoting McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir. 1997)). Deliberate indifference is an “extremely high standard to meet.” Domino v. Texas Dep't of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001). A plaintiff must show that the officials “refused to treat him, ignored his complaints, intentionally treated him incorrectly, or engaged in any similar conduct that would clearly evince a wanton disregard for any serious medical needs.” Id. (quoting Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985)). Based on a review of the competent summary judgment evidence presented, Plaintiff has failed to establish that Dr. Tracy acted with deliberately indifferent to his medical needs. Plaintiff alleges that, on December 20, 2010, he “suffered excruciating abdominal pain, being unable to eat and bedridden for approximately 5 days.” (Doc. 1, Supplement at 5). The extensive medical records submitted in this case show that Dr. Tracy and other medical staff examined and treated Plaintiff on numerous occasions from late 2010 through September of 2011. (See generally Doc. 42, Ex. C; Doc. 52, Ex. A). Dr. Tracy states that he first became aware of Plaintiff's illness on December 22, 2010. (Doc. 42, Ex. D). During this initial visit, “Plaintiff complained of tenderness of the upper middle epigastrium area of abdomen. (Id.). Dr. Tracy performed several abdominal examinations and ordered multiple lab tests. (Id.). Dr. Tracy further scheduled for Plaintiff an appointment with a gastrointestinal specialist, which occurred on March 7, 2011. (Id.). To support his claim of deliberate indifference, Plaintiff states that CT-scan performed months later revealed possible gallstones and a spot on the pancreas. (Doc. 52, Brief at 10). In his medical judgment, however, Dr. Tracy found during his examinations through March, 2011, that it was medically unnecessary to order any X-rays, CT scans, or MRIs. (Doc. 42, Ex. B). Dr. Tracy prescribed Prilosec on a regular basis to Plaintiff in order to treat his diagnosed conditions of chronic dyspepsia and H. Pylori. (Id.). As discussed above, however, Plaintiff had a poor record of complying with Dr. Tracy's prescriptions. When viewing the evidence in a light most favorable to Plaintiff, he cannot demonstrate that Dr. Tracy acted with deliberate indifference towards his medical needs. The record does not reflect that Dr. Tracy refused to treat Plaintiff, ignored his complaints, or intentionally treated him incorrectly. Domino, 239 F.3d and 756. Rather, the undisputed evidence reflects that Dr. Tracy actively provided Plaintiff with competent medical attention targeted towards alleviating Plaintiff's medical conditions. At best, the record reveals that: (1) Plaintiff disagreed with the medical judgment and course of treatment provided by Dr. Tracy; (2) Dr. Tracy's failure to conduct a CT-scan at an earlier date or otherwise treat his condition more aggressively only shows the possibility of negligent care. *12 In sum, Plaintiff has come forward with no competent summary judgment evidence to indicate that Dr. Tracy unnecessarily and wantonly inflicted pain or needless suffering on Plaintiff. Plaintiff, therefore, cannot establish a genuine issue of material of fact with respect to his Eighth Amendment deliberate indifference claim against Dr. Tracy. Because no such Eighth Amendment violation has been shown, Dr. Tracy is entitled to qualified immunity with respect to this claim. State-Created Danger Plaintiff claims that several Defendants should be held liable under a “state-created danger” theory as related to the policy or custom of allowing inmates a short time to consume their meals. (Doc. 1, Supplement). The Fifth Circuit, however, has never adopted the state-created danger theory of liability. See Doe ex rel. Magee v. Covington County School District, 675 F.3d 849, 865 (5th Cir. 2012); Kovacic v. Villarreal, 628 F.3d 209, 214 (5th Cir. 2010); Rivera v. Houston Indep. Sch. Dist., 349 F.3d 244, 249 (5th Cir. 2003). While not expressly recognizing the state-created danger theory, Fifth Circuit cases have stated the elements that such a cause of action would require. See Doe, 675 F.3d at 865; Scanlon v. Texas A&M University, 343 F.3d 533, 537-38 (5th Cir. 2003). The Fifth Circuit determined that “[t]o establish deliberate indifference for purposes of state-created danger, the plaintiff must show that ‘[t]he environment created by the state actors must be dangerous; they must know it is dangerous; and ... they must have used their authority to create an opportunity that would not have existed for the third party's crime to occur.’ ” Doe, 675 F.3d at 865 (quoting Piotrowski v. City of Houston, 237 F.3d 567, 585 (5th Cir. 2001)). Even if the state-created danger theory were viable in the Fifth Circuit, Plaintiff has come forward with no competent summary judgment evidence to satisfy each of the elements of such a theory. Indeed, Plaintiff presents no evidence establishing that any of the Defendants knew that they were creating a dangerous environment based on policies for eating in the dining hall. Plaintiff, therefore, cannot establish a genuine issue of material of fact with respect to his state-created danger theory. Consequently, the Defendants are entitled to qualified immunity with respect to this claim. III. Conclusion For the foregoing reasons, it is ORDERED that each of the following motions filed by Plaintiff are hereby DENIED: Motion for Leave to File A Supplemental Pleading (Doc. 45), “Motion for Order to Preserve Electronically Stored Information” (Doc. 49), Motion for Entry of Default (Doc. 56), Motion for an Order Compelling Discovery (Doc. 57), “Motion to Amend Order to Compel Discovery and Declaration for Entry of Default” (Doc. 59), and motions for default judgment against Defendants Terrence Moore and Rick Thaler (Docs. 65 and 70). It is further ORDERED that the Defendants' Motion for a Protective Order (Doc. 61) is DENIED as unnecessary. It is further ORDERED that the Defendants' Motion for Summary Judgment (Doc. 42) is GRANTED on all issues and that Plaintiff's § 1983 claims are DISMISSED with prejudice. Plaintiff shall take and recover nothing of and from any of the Defendants. A separate judgment will issue, and the Clerk is DIRECTED to close this case. It is further ORDERED that any and all motions not previously ruled upon by the Court are hereby DENIED. SIGNED this 21st day of November, 2012. Footnotes [1] Rule 15(a) provides in pertinent part that a party may amend his pleading only by leave of court or by written consent of the adverse party and that leave should be freely given when justice so requires. SeeFed. R. Civ. P. 15(a). [2] In a pleading dated October 23, 2012, Plaintiff advised the Court that his legal materials pertaining to this case have been confiscated. (Doc. 74). Even assuming that Plaintiff allegations are true, the Court finds no prejudice at this time as this case has been fully briefed on all issues. [3] Chronic dyspepsia is often characterized by chronic or recurrent pain in the upper abdomen and feeling of being full earlier than expected while eating. H. Pylori is a type of bacteria that is sometimes associated with abdominal pain, ulcers and dyspepsia. (See Doc. 42, Ex. D). [4] The Court below will address Plaintiff's specific deliberate indifference claims with respect to Dr. Tracy.