IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-10521
Summary Calendar
ANSON VERNON MOORE, II,
Plaintiff-Appellant,
versus
GARY JOHNSON, Director Texas
Department of Criminal Justice;
SUSAN PAYNE, Lieutenant; BOBBY
MORRIS, Sergeant; THOMAS B. DOHERTY,
Correctional Offivcer III; OLIVER,
Correctional Officer III, TEXAS
DEPARTMENT FOR CRIMINAL JUSTICE,
Unknown John and Jane Does,
employees of TDCJ,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:99-CV-122-C
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October 6, 2000
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Anson Vernon Moore II, pro se Texas prisoner # 814959, is
currently incarcerated by the Texas Department of Criminal
Justice - Institutional Division (“TDCJ-ID”). Moore brought a 42
U.S.C. § 1983 complaint alleging that he was denied medical
* 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this opinion should not be published and is not precedent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.
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treatment and that he lost “good time” credits. The district
court referred Moore’s complaint to Magistrate Judge Nancy M.
Koenig.
Moore’s complaint arose out of treatment he received for a
toenail fungus condition. On September 16, 1998, Moore was
working in a field and told the field boss, defendant Thomas
Doherty, that he was having foot pain associated with the toenail
condition. Doherty allegedly asked Moore if he was refusing to
work. Moore replied in the negative and asserted his need to see
a physician. Lieutenant Susan Payne was called, and after
evidently deciding that Moore was refusing to work, she
instructed defendant Bobby Morris to take Moore to “lockup,”
where he allegedly remained for a total of nine days.
Morris examined Moore’s feet, noted no bleeding, and told
Moore to put in a “sick call” to see a doctor. Moore did not see
a doctor until September 22, 1998, six days after he first
complained of pain. He was seen by health care personnel in the
prison clinic for his foot pain on September 16, 21, and 23 and
given a prescription on September 21, and some cream for his
toenails on September 23. He was also seen in the clinic for
unrelated problems on September 17, 25, 29, and October 6, but
records of those visits contain no mention of foot pain. The
condition purportedly left his toenails in such a condition that
they no longer grow properly, causing Moore discomfort. Moore
contends that when he was allowed to see a physician, he was
handcuffed and could not remove his boots for the examination.
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The magistrate judge dismissed Moore’s claim as frivolous
pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and § 1915A(b)(1). A
prisoner’s complaint filed in forma pauperis (“IFP”) may be
dismissed as frivolous if it has no arguable basis in law or in
fact. See Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir.
1997). A dismissal of an IFP complaint as frivolous is reviewed
for abuse of discretion. See id.
A prisoner has an Eighth Amendment right to be free from
cruel and unusual punishment, which may be violated if prison
officials exhibit deliberate indifference to the prisoner’s
serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 102,
106 (1976). Although Moore’s complaint does not specifically
cite the Eighth Amendment, the gravamen of his complaint is that
he seeks damages based on alleged delays or lack of proper
medical treatment, which implicates the Eighth Amendment. In
defining “deliberate indifference,” the Supreme Court has adopted
“subjective recklessness” as that term is used in the criminal
law. See Farmer v. Brennan, 511 U.S. 825, 839-40 (1994). Under
this definition, a prison official violates the Eighth Amendment
if he “knows of and disregards an excessive risk to inmate health
or safety; the official must both be aware of facts from which
the inference could be drawn that a substantial risk of serious
harm exists, and he must also draw the inference.” Id. at 837.
Mere negligence on the part of the prison official does not
constitute deliberate indifference. See Jackson v. Cain, 864
F.2d 1235, 1246 (5th Cir. 1989).
3
Moore’s brief on appeal is woefully inadequate. Although he
disputes some minor details of the magistrate judge’s factual
conclusions, he does not dispute that he in fact received
treatment for his foot pain. He does not cite to any
jurisprudence or facts supporting his position that he was
subjected to deliberate indifference. Although pro se briefs are
construed liberally, even a pro se prisoner must brief issues
adequately in order to preserve them for appeal; otherwise, they
are deemed abandoned. See Yohey v. Collins, 985 F.2d 222, 224-25
(5th Cir. 1993).
Moreover, even giving Moore’s argument the most liberal
construction possible, he fails to demonstrate that the
magistrate judge abused her discretion in dismissing his
complaint. Moore was not denied medical treatment and was, in
fact, seen in the prison clinic on the day he first complained of
pain. There is no evidence in the record showing that the
treatment he received in the clinic was inadequate. At most, any
delays or inadequate treatment would constitute negligence, which
does not rise to the level of deliberate indifference. See
Stewart v. Murphy, 174 F.3d 530, 534 (5th Cir. 1999). Thus, the
magistrate judge did not abuse her discretion in dismissing the
complaint as frivolous. As for the loss of good time credits,
Moore’s brief contains no mention of that claim. Therefore, it
should be deemed abandoned. See Yohey, 985 F.2d at 224-25.
Accordingly, this appeal is dismissed as frivolous. See
Siglar, 112 F.3d at 193. Section 1915(g) of the Prison
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Litigation Reform Act provides that a prisoner who has on three
or more prior occasions brought an action or appeal that was
dismissed on the grounds of being frivolous may not bring a civil
action or appeal a judgment in a civil action IFP unless he is in
imminent danger of serious physical injury. 28 U.S.C. § 1915(g).
Both the district court’s dismissal as frivolous and the
dismissal on appeal count as “strikes” for purposes of § 1915(g).
See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).
Thus, Moore has accumulated two strikes. Should he accumulate
three strikes, he may not proceed IFP in any civil action or
appeal filed while he is incarcerated or detained in any facility
unless he is in imminent danger of serious physical injury.
For the foregoing reasons Moore’s appeal is DISMISSED.
APPEAL DISMISSED. See 5th Cir. R. 42.2.
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