United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 16, 2007
Charles R. Fulbruge III
Clerk
No. 06-20131
Summary Calendar
EDWARD TRIGO,
Plaintiff-Appellant,
versus
TEXAS DEPARTMENT OF CRIMINAL JUSTICE - INSTITUTIONAL
DIVISION OFFICIALS, unnamed defendants; UNIVERSITY OF TEXAS
MEDICAL BRANCH; TEXAS TECH UNIVERSITY HEALTH SCIENCE CENTER,
Medical Staff, Unnamed Defendants; MR. JONES, Physician
Assistant UTMB/TDCJ-RMF; JOSEPH CURRY, Physician Assistant
UTMB/TDCJ-RMF; DR. WYATT HOWELL, Price Daniels Unit; DR. DENISE
DESHIELDS, Regional Director Office of Health Care Systems,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:05-CV-2012
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Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Edward Trigo, Texas prisoner # 1173465, appeals the district
court’s dismissal of his 42 U.S.C. § 1983 action challenging the
denial of treatment for hepatitis C. The district court
dismissed Trigo’s complaint as frivolous pursuant to 28 U.S.C.
§ 1915A. Trigo argues that the district court erred in
dismissing his complaint as frivolous because the appellees
*
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this opinion should not be published and is not precedent except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.
No. 06-20131
-2-
exhibited deliberate indifference to his serious medical needs.
He asserts that the extremely high levels of his liver enzymes,
as shown by laboratory reports, established that the appellees
should have known that the delay or denial of treatment would
cause serious harm to his liver. Trigo focuses on appeal on two
occasions when he was denied treatment for allegedly nonmedical
reasons. First, he contends that he was denied treatment for
hepatitis C in August 2003 based on a policy requiring that
inmates be incarcerated for 12 months before they received
treatment. Second, he asserts that he was denied treatment in
May 2004 based on a policy that treatment would be provided only
if the inmate was not due to be discharged within 12 months.
Trigo contends that he did not receive any medication for
hepatitis C and that the failure to treat this condition resulted
in his developing cirrhosis of the liver.
We review de novo the district court’s dismissal pursuant to
§ 1915A. Ruiz v. United States, 160 F.3d 273, 275 (5th Cir.
1998). Prison officials violate the constitutional 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.
Wilson v. Seiter, 501 U.S. 294, 297 (1991). Unsuccessful medical
treatment, acts of negligence, neglect, or medical malpractice
are insufficient to give rise to a § 1983 cause of action.
Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991). “[D]elay
No. 06-20131
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in medical care can only constitute an Eighth Amendment violation
if there has been deliberate indifference, which results in
substantial harm.” Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th
Cir. 1993).
Trigo has asserted the denial of medical treatment for
hepatitis C based on policy, rather than on medical, reasons and
that he was substantially harmed by the denial of treatment
because this led to his developing cirrhosis. Given these
allegations, the district court erred in dismissing Trigo’s
complaint as frivolous. See Wilson, 501 U.S. at 301-03; see
also, McKenna v. Wright, 386 F.3d 432, 437 (2d Cir. 2004).
Accordingly, we vacate the district court’s judgment and remand
for further consideration in light of this decision.
VACATED AND REMANDED.