Case: 19-20013 Document: 00515854552 Page: 1 Date Filed: 05/10/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
May 10, 2021
No. 19-20013
Summary Calendar Lyle W. Cayce
Clerk
Rickie Thompson,
Plaintiff—Appellant,
versus
Doctor Sharma Sharad; John Sealy Hospital,
Galveston Texas,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:18-CV-4240
Before Higginbotham, Jones, and Costa, Circuit Judges.
Per Curiam:*
Rickie Thompson, Texas prisoner number # 828601, filed a pro se
civil action citing 42 U.S.C. § 1983, in which he alleged that he was injured
by surgery performed on his wrist by Dr. Sharma Sharad, M.D., at the John
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 19-20013 Document: 00515854552 Page: 2 Date Filed: 05/10/2021
No. 19-20013
Sealy Hospital in Galveston. He sued the doctor and the hospital and
specifically alleged “malpractice.” The district court screened the case
under 28 U.S.C. § 1915(e)(2)(B)(i) and 28 U.S.C. § 1915A(b) and dismissed
it as frivolous, as barred by immunity, and for failure to state a claim, because
the hospital is protected by Eleventh Amendment immunity and because
malpractice is not a proper cause of action under § 1983. Thompson appeals
and moves for appointment of counsel.
We review the dismissal de novo and accept the facts alleged in the
complaint as true and construe them liberally in the light most favorable to
Thompson. See Alderson v. Concordia Par. Corr. Facility, 848 F.3d 415, 419
(5th Cir. 2017). “A prison official violates the Eighth Amendment’s
prohibition against cruel and unusual punishment when his conduct
demonstrates deliberate indifference to a prisoner’s serious medical needs,
constituting an unnecessary and wanton infliction of pain.” Easter v. Powell,
467 F.3d 459, 463 (5th Cir. 2006) (internal quotation marks and citation
omitted). “Deliberate indifference is an extremely high standard to meet.”
Domino v. Tex. Dep’t of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001)
The prisoner must show the defendant’s “actual knowledge and conscious
disregard of the risk of harm to the plaintiff [and it] cannot be inferred from
a prison official’s mere failure to act reasonably [or] from negligence alone.”
Lawson v. Dallas County, 286 F.3d 257, 262-63 (5th Cir. 2002).
“Unsuccessful medical treatment, acts of negligence, or medical malpractice
do not constitute deliberate indifference, nor does a prisoner's disagreement
with his medical treatment, absent exceptional circumstances.” Gobert v.
Caldwell, 463 F.3d 339, 346 (5th Cir. 2006).
Thompson asserts conclusionally that Dr. Sharad intentionally
treated him incorrectly. But his factual allegations show, at most, negligence
or malpractice and not deliberate indifference. In addition, the defendant
John Sealy Hospital is immune from suit under the Eleventh Amendment
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No. 19-20013
and cannot be vicariously liable. See Lewis v. Univ. of Texas Med. Branch at
Galveston, 665 F.3d 625, 630 (5th Cir. 2011); Thompkins v. Belt, 828 F.2d 298,
303 (5th Cir. 1987).
The district court’s dismissal counts as a strike under § 1915(g). We
decline to dismiss the appeal as frivolous, which would impose a second
strike. Nonetheless, Thompson is warned that if he accumulates three
strikes, he will no longer be allowed to proceed IFP in any civil action or
appeal filed while incarcerated or detained in any facility, unless he is under
imminent danger of serious bodily injury. See § 1915(g).
Judgment AFFIRMED; three-strikes WARNING ISSUED. The
motion to appoint counsel is DENIED.
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