UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-10265
Summary Calendar
DONALD R. HARRIS,
Plaintiff-Appellant,
versus
JOE DONALDSON, DR., ET AL.,
Defendants-Appellees.
Appeal from the United States District Court
For the Northern District of Texas
(2:93-CV-230)
November 3, 1995
Before POLITZ, Chief Judge, HIGGINBOTHAM and BENAVIDES, Circuit Judges.
PER CURIAM:*
Donald R. Harris, a Texas state prisoner, appeals the magistrate judge’s dismissal
under 28 U.S.C. § 1915(d) of his pro se in forma pauperis civil rights action against Dr. Joe
Donaldson and the adverse summary judgment in favor of Coronado Hospital and Health,
Inc. and Warden Darwin D. Sanders. Finding no error, we affirm.
Background
*
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the Court has determined that this opinion should not be published.
Harris invoked 42 U.S.C. § 1983 claiming deliberate indifference to his serious
medical needs as a diabetic. The magistrate judge first conducted a Spears1 hearing and then
proceeded to hear the matter by consent of the parties.2 Harris made an aborted attempt to
supplement his complaint but did not file a proper motion when he could have and failed to
articulate an actionable claim against Dr. Donaldson. Warden Sanders and the hospital
sought and were granted summary judgment. Demands against Dr. Donaldson were
dismissed as frivolous under 28 U.S.C. § 1915(d). Harris timely appealed.
Analysis
Harris first contends that the magistrate judge erred by denying him an opportunity
to amend his complaint. He was given that opportunity but his motion was untimely and
inadequate. Apprised of this failure, Harris did not attempt to file a proper motion and
supplement, nor did he respond to the magistrate judge’s invitation to articulate his complaint
against Dr. Donaldson. We perceive neither error nor abuse of discretion in these rulings.3
Harris next contends that the trial court erred in granting summary judgment rejecting
his claim of deliberate indifference to his serious medical needs. Summary judgment is
reviewed de novo.4 One seeking such is entitled to judgment as a matter of law only if there
is no genuine issue of material fact.5 Summary judgment should be granted whenever the
1
Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
2
28 U.S.C. § 636(c).
3
Davis v. United States, 961 F.2d 53 (5th Cir. 1991) (holding that a district court’s
decision to grant or deny leave to amend is reviewed under the abuse of discretion standard).
4
Thompson v. Georgia Pacific Corp., 993 F.2d 1166 (5th Cir. 1993).
5
Fed.R.Civ.P. 56(c).
2
movant demonstrates “an absence of evidence to support the non- moving party’s case.”6
When the defendant moves for summary judgment the plaintiff must “make a showing
sufficient to establish the existence of [the] element[s] essential to the plaintiff’s case, and
on which [the plaintiff] will bear the burden of proof at trial.”7
Harris alleges that he was denied proper health care for his diabetes. For an inmate
to establish an unconstitutional denial of medical treatment he must show that care was
denied or so delayed as to constitute deliberate indifference to his serious medical needs.8
The Supreme Court has defined deliberate indifference as “subjective recklessness” and
[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.9
We have held that “[i]t is firmly established that negligent or mistaken medical treatment or
judgment does not implicate the eighth amendment and does not provide the basis for a civil
rights action.”10 Furthermore, “unsuccessful medical treatment does not give rise to a § 1983
cause of action” nor does “mere negligence, neglect or medical malpractice.”11
We view the summary judgment evidence in the light most favorable to Harris and
find no valid basis for a claim of deliberate indifference. The record reflects that from
6
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
7
Id. at 322.
8
See Estelle v. Gamble, 429 U.S. 97 (1976); Varnado v. Lynaugh, 920 F.2d 320 (5th
Cir. 1991).
9
Farmer v. Brennan, 114 S.Ct. 1970, 1980 (1994).
10
Graves v. Hampton, 1 F.3d 315, 319 (5th Cir. 1993).
11
Varnado, 920 F.2d at 321.
3
November 1992 through August 1994 Harris received continuing medical treatment. His
blood sugar level was monitored on a daily basis and his insulin dose was adjusted
accordingly. His medical records reflect that medical personnel advised him on diet,
exercise, and the effects of long term high blood sugar. Harris consulted with a registered
dietician on February 26, 1993, May 27, 1993, September 29, 1993, June 7, 1994, and
July 5, 1994. He also received diet cards for approved American Diabetes Association low
fat diets and periodic calorie count adjustments. Harris may quarrel with the quality and
quantity of his medical treatment but he cannot establish the requisite deliberate indifference
required for a constitutional complaint.
Harris next contends that the magistrate judge erred by dismissing as frivolous his
claim against Dr. Donaldson. A complaint filed in forma pauperis may be dismissed if it is
frivolous.12 A complaint is frivolous “where it lacks an arguable basis either in law or in
fact.”13 The complaint against Dr. Donaldson qualifies for dismissal under 28 U.S.C.
§ 1915(d).
Finally, Harris maintains that the trial court erred by denying his request for
appointment of counsel. Civil rights litigants are entitled to appointment of counsel in cases
involving “exceptional circumstances.”14 Factors to be considered, among others, are the
complexity of the issues and the plaintiff’s ability to represent himself adequately.15 We do
not find any exceptional circumstances in this case and hold that the magistrate judge did not
abuse his discretion in denying the motion for appointment of counsel.
12
28 U.S.C. § 1915(d); Eason v. Thaler, 14 F.3d 8 (5th Cir. 1994).
13
Denton v. Hernandez, 504 U.S. 25, ___ (1992).
14
See Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1992).
15
Id. at 213.
4
The same applies to Harris’ motion for appointment of counsel on appeal. That
motion is DENIED.
The judgment appealed is AFFIRMED.
5