IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-10297
Conference Calendar
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JEROME A. JONES,
Plaintiff-Appellant,
versus
JOHN DOE, MEDICAL WARDEN, and
JOHN DOE, MED. PA/PHYSICIAN,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:95-CV-175
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August 22, 1995
Before KING, JOLLY, and WIENER, Circuit Judges.
PER CURIAM:*
Jerome Jones appeals the dismissal of his civil rights
complaint** in which he alleged inadequate medical care.
*
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that this opinion should not be published.
**
Although Jones filed the instant complaint under 42
U.S.C. § 1983, the action is construed as one brought pursuant to
Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), because
it alleges civil rights violations by federal defendants. See
Stephenson v. Reno, 28 F.3d 26, 26 n.1 (5th Cir. 1994).
No. 95-10297
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A district court may dismiss an in forma pauperis (IFP) complaint
as frivolous under 28 U.S.C. § 1915(d) if it lacks an arguable
basis in law or fact. Eason v. Thaler, 14 F.3d 8, 9 (5th Cir.
1994).
The Eighth Amendment's prohibition against "cruel and
unusual punishment" protects Jones from improper medical care
only if the care is "sufficiently harmful to evidence deliberate
indifference to serious medical needs." Estelle v. Gamble, 429
U.S. 97, 106 (1976). Unsuccessful medical treatment, acts of
negligence, neglect, or medical malpractice are insufficient to
give rise to a cause of action. Varnado v. Lynaugh, 920 F.2d
320, 321 (5th Cir. 1991).
Jones did not plead any facts raising an allegation that
prison officials were deliberately indifferent to his serious
medical needs. Rather, the gravamen of his complaint is that
prison officials were negligent in failing to diagnose his
illness promptly and correctly. His brief charges prison medical
personnel with neglecting to make the proper diagnosis "until it
was to [sic] late to keep Plaintiff from being Permanently
Impaired Physically and Mentally." At its core, Jones's claim is
simply one of negligence. Therefore, the district court did not
abuse its discretion in dismissing Jones's complaint as
frivolous. See Eason, 14 F.3d at 9.
Jones's appeal is without arguable merit and thus frivolous.
See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).
Because Jones was granted IFP status in the district court, his
No. 95-10297
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motion to this court for leave to proceed IFP on appeal is
unnecessary.
MOTION DENIED; APPEAL DISMISSED. See 5th Cir. Rule 42.2.