Nash v. Lacombe

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-30562
Summary Calendar

ANTHONY NASH,
Plaintiff-Appellant,

versus

RICK LACOMBE; BARRY HERRINGTON;
WARDEN DETENTION CTR RAPIDES
PARISH,
Defendants-Appellees.

Appeal from the United States District Court
For the Western District of Louisiana
(94-CV-2297)
(August 9, 1995)

Before POLITZ, Chief Judge, KING and SMITH, Circuit Judges.

PER CURIAM:*

Anthony Nash, a Louisiana state prisoner proceeding pro se and

in forma pauperis, appeals the 28 U.S.C. § 1915(d) dismissal of his

civil rights complaint against Rick Lacombe, Barry Herrington, and

the Rapides Detention Center. Finding neither error nor abuse of

*
Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the court has determined that this opinion
should not be published.
discretion, we affirm.

Nash alleges inadequate medical care while incarcerated at the

Center. Suspecting gout, Nash complained that his feet hurt and

requested hospitalization for an examination. Lacombe and

Herrington, emergency medical technicians, denied the

hospitalization request on three occasions but prescribed

medication. When he continued to complain a month later and

reported adverse reactions to the medication, Nash was sent to a

hospital where a doctor found that he did not suffer from gout.

Nash alleges that he was transferred to another prison where he

ultimately was diagnosed as having a heart murmur. Alleging that

the medication prescribed by Lacombe and Herrington caused the

heart murmur, Nash sought damages.

Concluding that the facts did not support a finding of

deliberate indifference to Nash's serious medical needs, the

magistrate judge recommended dismissal as frivolous. Over Nash's

objection the district court accepted the recommendation and Nash

timely appealed.

An IFP complaint may be dismissed as frivolous under section

1915(d) if it has no arguable basis in law or fact.1 We review

such dismissals under the abuse of discretion standard.2

Under the fourteenth amendment pretrial detainees are entitled

to reasonable medical care,3 an inquiry which turns on the

1
Booker v. Koonce, 2 F.3d 114 (5th Cir. 1993).
2
Id.
3
Cupit v. Jones, 835 F.2d 82 (5th Cir. 1987).

2
determination whether the medical care decision was reasonable.4

Medical care for one imprisoned after conviction is governed

by the eighth amendment. To prevail, a plaintiff "must allege acts

or omissions sufficiently harmful to evidence deliberate

indifference to serious medical needs."5 The appropriate

definition of deliberate indifference in this context is the

subjective recklessness as used in the criminal law,6 and it "must

rest on facts clearly evincing 'wanton' actions on the part of the

defendants."7 Unsuccessful medical treatment, negligence, and even

medical malpractice do not give rise to a section 1983 cause of

action.8

We cannot with certainty determine from the record whether

Nash is a pretrial detainee or convicted prisoner. This

uncertainty is irrelevant, however, for Nash's allegations of

medical insufficiency fail to pass muster in either instance. The

allegations, taken as true, reflect that Nash was given medication

for his complaint and was sent to the hospital when he complained

of continued pain and reaction to the medication. These facts do

not establish that the defendants knew that Nash faced a

4
Fields v. City of South Houston, Tex., 922 F.2d 1183 (5th
Cir. 1991).
5
Estelle v. Gamble, 429 U.S. 97, 106 (1976).
6
Reeves v. Collins, 27 F.3d 174 (5th Cir. 1994) (citing Farmer
v. Brennan, 114 S.Ct. 1970 (1994)).
7
Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985).
8
Varnado v. Lynaugh, 920 F.2d 320 (5th Cir. 1991).

3
substantial risk of harm which they disregarded.9 Nor do they show

that Nash was unreasonably denied medical care.10 Nash has not

alleged facts which may be taken as a violation of guarantees

secured by either the fourteenth or eighth amendment.

The judgment appealed is AFFIRMED.

9
Farmer.
10
Cupit.

4