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should not be published.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