Case: 13-60791 Document: 00513053702 Page: 1 Date Filed: 05/22/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 13-60791
Fifth Circuit
FILED
Summary Calendar May 22, 2015
Lyle W. Cayce
MELVIN GRAYER, Clerk
Plaintiff-Appellant
v.
GEO CORPORATE OFFICE GROUP, INCORPORATED; MS. FERGERSON;
GLORIA PERRY; GEO WARDEN VINCENT HORTON; FRANK SHAW,
M.T.C. Warden; DOCTOR CARL A. FAULKS,
Defendants-Appellees
Appeals from the United States District Court
for the Southern District of Mississippi
USDC No. 3:12-CV-660
Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM: *
Proceeding pro se and in forma pauperis, Melvin Grayer, Mississippi
prisoner # 08710, appeals the district court’s dismissal of his 42 U.S.C. § 1983
complaint as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). Grayer alleged
that the defendants violated his rights under the Eighth Amendment by failing
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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No. 13-60791
to provide timely and adequate medical treatment for an injury he received to
his shoulder.
A district court is directed to dismiss a claim by a prisoner or an in forma
pauperis litigant if it is frivolous or fails to state a claim upon which relief may
be granted. 28 U.S.C. §§ 1915A(b)(1) & 1915(e)(2)(B). A district court’s
dismissal of a complaint as frivolous is reviewed for an abuse of discretion.
Rogers v. Boatright, 709 F.3d 403, 407 (5th Cir. 2013).
Prison officials violate the Eighth Amendment’s prohibition against
cruel and unusual punishment when they demonstrate deliberate indifference
to a prisoner’s serious medical needs, constituting an “unnecessary and wanton
infliction of pain.” Estelle v. Gamble, 429 U.S. 97, 104-05 (1976) (internal
quotations and citation omitted).
Grayer has failed to show that any of the defendants engaged in conduct
“that would clearly evince a wanton disregard for any serious medical needs.”
Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006) (internal quotation marks
and citation omitted). Although there was a six-month delay between Grayer’s
transfer to the East Mississippi Correctional Facility (EMCF) and his first
appointment with a doctor at EMCF, Grayer received medical treatment with
the nursing staff and diagnostic testing at EMCF during those six months. He
has not shown that any of the defendants disregarded an excessive risk to his
health or safety, see Farmer v. Brennan, 511 U.S. 825, 837 (1994), or that any
delay in arranging the appointment rose to the level of deliberate indifference
that resulted in substantial harm, see Rogers, 709 F.3d at 410.
He also cannot show that any delay in seeing an orthopedic specialist
constituted deliberate indifference, as the question whether “additional
diagnostic techniques or forms of treatment is indicated is a classic example of
a matter for medical judgment.” See Estelle, 429 U.S. at 107. After Grayer
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No. 13-60791
was evaluated by a doctor, he received conservative treatment, including
physical therapy, and was referred to an orthopedic specialist who continued
conservative treatment. Grayer’s disagreement with the course of treatment
is insufficient to show deliberate indifference to his medical needs. See Gobert,
463 F.3d at 346. This is true even if the conservative treatment did not
ultimately relieve his symptoms. See id.
Accordingly, the district court did not abuse its discretion in dismissing
Grayer’s § 1983 complaint. Because this case does not present the type of
exceptional circumstances that warrant the appointment of counsel, the
district court also did not abuse its discretion in denying Grayer’s motion for
the appointment of counsel. See Cupit v. Jones, 835 F.2d 82, 86 (5th Cir. 1987);
Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982).
The district court’s dismissal of Grayer’s complaint counts as a strike for
purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387
(5th Cir. 1996). Grayer is WARNED that if he accumulates three strikes
pursuant to § 1915(g), he may not proceed in forma pauperis in any civil action
or appeal filed while he is incarcerated or detained in any facility unless he is
under imminent danger of serious physical injury. See § 1915(g).
AFFIRMED; SANCTION WARNING ISSUED.
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