UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 94-60669
Summary Calendar
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BILLY RAY JOHNSON,
Plaintiff-Appellant,
versus
J. BALLARD, Unit Health Administrator, ET AL.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
(C-93-CA-425)
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(October 12, 1995)
Before JOLLY, JONES and STEWART, Circuit Judges.
EDITH H. JONES, Circuit Judge:*
Petitioner Billy Ray Johnson (Johnson), a Texas prisoner,
appeals the district court’s dismissal of his complaint,
purportedly pursuant to 42 U.S.C. § 1983 (§ 1983), that the
prison’s medical supervisors were deliberately indifferent to his
serious physical afflictions. Because the district court did not
abuse its discretion when it dismissed this complaint as frivolous,
this court affirms.
*
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should not be published.
I. FACTUAL BACKGROUND
In September of 1993, Johnson began experiencing
difficulty and discomfort when urinating. He submitted three sick
call requests during that month and a fourth in October. Medical
personnel at McConnell Prison, where Johnson was imprisoned,
responded to these sick calls with periodic examinations of
Johnson. For instance, shortly after his first sick call request,
prison nurses took a urine sample, analyzed it, and gave Johnson an
over-the-counter medication to ease his discomfort. While these
periodic examinations continued into early October, Johnson’s
condition worsened, prompting the prison’s medical staff to
administer two different over-the-counter medicines. Neither of
the medicines improved Johnson’s condition and on October 16, 1993,
the prison infirmary unsuccessfully attempted to catheterize
Johnson and drain his urine. As a result, he was taken to Bee
County Regional Center, where doctors performed this procedure
successfully, draining the urine from his system.
Johnson filed his complaint, purportedly pursuant to §
1983, and the district court conducted a Spears hearing.1 After
testimony from Johnson and the medical director of McConnell
Prison, the district court dismissed the suit as frivolous under 28
U.S.C. § 1915(d) (§ 1915(d)).
II. DISCUSSION
This court will vacate a district court’s dismissal of a
claim as frivolous under § 1915(d) only if the court abused its
1
See Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
2
discretion. Booker v. Koonce, 2 F.3d 114, 115 (5th Cir. 1993). An
in forma pauperis complaint may be dismissed as frivolous under §
1915(d) if it lacks an arguable basis in law or fact. Id.
In order to merit relief under § 1983, the prisoner must
prove that his allegedly inadequate medical care was prompted by
deliberate indifference to his serious medical needs. Estelle v.
Gamble, 429 U.S. 97, 104-05, 97 S. Ct. 285, 291 (1976); Banuelos v.
McFarland, 41 F.3d 232, 235 (5th Cir. 1995). The Supreme Court has
recently instructed that the appropriate definition of deliberate
indifference under the Eighth Amendment is akin to the standard of
“subjective recklessness as used in the criminal law.” Farmer v.
Brennan, ___ U.S. ___, 114 S. Ct. 1970, 1980 (1994). See also,
Reeves v. Collins, 27 F.3d 174, 176 (5th Cir. 1994). Specifically,
a prison official cannot be found liable under
the Eighth Amendment . . . unless the official
knows of and disregards an excessive risk to
inmate health or safety; the official must
both be aware of facts from which the
inference could be drawn that a substantial
risk of serious harm exists, and he must also
draw the inference.
Farmer, 114 S. Ct. at 1979.
The facts alleged by Johnson do not demonstrate
deliberate indifference to his medical condition. Rather, as the
district court correctly observed, even assuming his allegations
are true, Johnson’s claims prove that his treatment was at worst,
negligent. However, mere negligence will not suffice to support a
claim of deliberate indifference. See Mendoza v. Lynaugh, 989 F.2d
191, 193 (5th Cir. 1993); Jackson v. Cain, 864 F.2d 1235, 1246 (5th
Cir. 1989).
3
Finally, Johnson moves to have counsel appointed to aid
his appeal in this court. Because his case does not present the
“exceptional circumstances” which would warrant the appointment of
counsel, his motion is denied. See Ulmer v. Chancellor, 691 F.2d
209, 212 (5th Cir. 1982).
III. CONCLUSION
Because the district court did not abuse its discretion
when it dismissed Johnson’s complaint as frivolous, its judgment is
AFFIRMED. Further, Johnson’s motion for appointed counsel is
DENIED.
4