UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-60199
Summary Calendar
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THOMAS LEE,
Plaintiff-Appellant,
versus
EDDIE LUCAS, Commissioner,
ET AL.,
Defendants-Appellees.
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Appeal from the United States District Court for the
Southern District of Mississippi
(2:92 CV 344 PS)
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August 9, 1995
Before GARWOOD, HIGGINBOTHAM and DAVIS, Circuit Judges.
PER CURIAM:*
Plaintiff-appellant Thomas Lee (Lee) appeals the district
court's dismissal of his 42 U.S.C. § 1983 suit as frivolous
pursuant to 28 U.S.C. § 1915(d). We affirm.
* 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should not be published.
Facts and Proceedings Below
Lee, an inmate in the Southern Mississippi Correctional
Institution (SMCI) in Leakesville, Mississippi, filed this section
1983 suit against various prison officials on October 5, 1994,
alleging that Defendants denied him proper medical care and that
they harassed him in retaliation for filing a prison grievance.1
The district court granted Lee leave to proceed in forma pauperis.
In his pro se complaint, Lee alleges that he filed internal
grievances asserting that he had received inadequate medical
treatment and that Defendants had denied his grievances on the
ground that prison records reflected that he had not requested
medical care.2
Although Lee's complaint initially states that he was denied
medical care, he also alleges that he began seeing Dr. Serapio
(Serapio), the SMCI medical director, in March 1992 for back pain.
According to Lee's complaint, Serapio ordered x-rays for his back,
which revealed soft tissue damage. Lee alleges that Serapio then
ordered Lee to undergo leg x-rays and blood and urine analyses to
determine the cause of the soft tissue damage, but Lee allegedly
has never received the results of these tests from Serapio. Lee
alleges that he requested to be sent to the medical center in
Jackson, Mississippi, for a CAT scan and a proper diagnosis but
that Serapio refused. In addition, Lee alleges that Serapio
1
In a January 25, 1994, letter to the district court, Lee
stated that, on December 16, 1994, he was transferred to the
Mississippi State Penitentiary in Parchman, Mississippi.
2
Lee asserts that this response indicates record tampering.
2
refused to refill his pain medication and eventually replaced it
with a less effective medication.
On December 1, 1993, Dr. Harry Turner (Turner), a radiologist,
took x-rays of Lee's back and concluded that there were no
abnormalities. According to Lee's complaint, this diagnosis
"clearly shows that Dr. Turner deliberately fail[ed] in his
medical, professional and ethical judgment by not recommending or
suggesting a medical follow up." Lee also asserts that Betty
Creech (Creech), the SMCI administrative remedy program
administrator, acted maliciously and deliberately in denying his
medical grievances by giving his personal medical information to
the SMCI staff and by extending the deadline for Defendants to file
a response to these grievances.
On March 15, 1994, the district court determined that Lee's
complaint lacked any arguable basis either in law or in fact and
therefore dismissed it without prejudice under 28 U.S.C. § 1915(d).
Lee filed a timely notice of appeal.
Discussion
Dismissal of an in forma pauperis petition under 28 U.S.C. §
1915(d) is appropriate where the district court is satisfied that
the action is frivolous. An action is frivolous "where it lacks an
arguable basis either in law or in fact." Neitzke v. Williams, 109
S.Ct. 1827, 1831-32 (1989); see also Booker v. Koonce, 2 F.3d 114,
115-16 (5th Cir. 1993). We review a district court's section
1915(d) dismissal for abuse of discretion. Mackey v. Dickson, 47
F.3d 744, 745 (5th Cir. 1995).
3
Lee argues that the district court abused its discretion by
dismissing his suit without conducting a Spears3 hearing. To
prevail on a section 1983 claim for deprivation of medical care, a
prisoner must prove that care was denied and that this denial
constituted "deliberate indifference to serious medical needs."
Estelle v. Gamble, 97 S.Ct. 285, 291 (1976); see Johnson v. Treen,
759 F.2d 1236, 1238 (5th Cir. 1985). This Court has held that the
"legal conclusion of `deliberate indifference' . . . must rest
on facts clearly evincing wanton actions on the part of the
defendants." Johnson, 759 F.2d at 1238. "Unsuccessful medical
treatment does not give rise to a § 1983 cause of action. Nor does
mere negligence, neglect or medical malpractice." Varnado v.
Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991) (citations and internal
quotation marks omitted).
The thrust of Lee's medical care claim is that the medication
prescribed was inadequate and that Defendants failed to perform the
proper diagnostic tests. He has not alleged that Defendants'
actions in any way affected his physical condition. Based on our
review of the record, we find that Lee's medical care claim amounts
to no more than allegations of negligence. Because negligence
claims are not cognizable under section 1983, id., the district
court did not abuse its discretion in dismissing his medical care
claim under section 1915(d).4
3
Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
4
In his brief on appeal, Lee moves for a physical exam pursuant
to Fed.R.Civ.P. 35(a), arguing that he is entitled to another
opinion on the x-rays taken of his back. We deny this frivolous,
4
Lee next argues on appeal that he was harassed because he
filed grievances concerning his medical care. It is well
established that an inmate may not be retaliated against because he
exercises his right of access to the courts. Gibbs v. King, 779
F.2d 1040, 1046 (5th Cir.), cert. denied, 106 S.Ct. 1975 (1986).
However, "if the conduct claimed to constitute retaliation would
not, by itself, raise the inference that such conduct was
retaliatory, the assertion of the claim itself without supporting
facts is insufficient." McCoy v. Lynaugh, No. 94-10631, slip op.
at 3 (5th Cir. Nov. 18, 1994) (unpublished) (citing Whittington v.
Lynaugh, 842 F.2d 818, 819 (5th Cir.), cert. denied, 109 S.Ct. 108
(1988)). We note that Lee only mentioned two acts of harassment in
his complaint: "suppressing respondent's response past deadlines"
and the submission of his personal medical information to the SMCI
staff. The extension of a deadline for a response and the
submission of medical records to the prison staff after a prisoner
has filed a grievance do not, by themselves, raise an inference
that such conduct was retaliatory. This allegation thus lacks an
arguable basis in law or fact, and the district court did not abuse
its discretion in dismissing it under section 1915(d).5
unauthorized motion.
5
For the first time in his brief on appeal, Lee alleges various
additional instances of harassment. First, he asserts that
Defendants influenced other SMCI employees and gang members to
harass him and to suppress his mail and medication. He also
contends that he received four transfers, was put in segregation
for 30 days, and put in punitive segregation for 120 days. In
addition, Lee asserts that he was transferred to the main
penitentiary in Parchman, Mississippi, and placed in lock down so
that his mail and legal work could be read. Finally, Lee alleges
5
Conclusion
For the foregoing reasons, the judgment of the district court
is
AFFIRMED.
that he was prescribed an experimental drug not commonly used for
his type of ailment. Because Lee did not raise these claims in the
district court below, we will not consider them on appeal. See
Varnado, 920 F.2d at 321.
6