Case: 16-20218 Document: 00514090913 Page: 1 Date Filed: 07/27/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-20218 FILED
Summary Calendar July 27, 2017
Lyle W. Cayce
Clerk
PHILLIP BAILEY,
Plaintiff-Appellant
v.
DR. VINCENT, Medical Director - University of Texas Medical Branch - CMC
- Estelle Unit; UNKNOWN PHARMACIST, University of Texas Medical
Branch - CMC - Huntsville Pharmacy,
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:15-CV-3437
Before BENAVIDES, SOUTHWICK, and COSTA, Circuit Judges.
PER CURIAM: *
Phillip Bailey, Texas prisoner # 1619414, appeals the district court’s
dismissal of his 42 U.S.C. § 1983 complaint as frivolous, pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(i). He argues that the district court erred in dismissing his
claim that Dr. Vincent refused to conduct a certain diagnostic test based on the
excessive cost of the procedure. He also contends that the district court erred
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 16-20218
in denying his motion for appointment of counsel, in dismissing his § 1983
complaint without providing an opportunity to amend, and in relying on the
State’s special report prepared in accordance with Martinez v. Aaron, 570 F.2d
317 (10th Cir. 1978).
Bailey’s claims are unavailing. First, Bailey’s claim regarding cost as a
factor in a medical decision is insufficient to constitute deliberate indifference.
See Morris v. Livingston, 739 F.3d 740, 748 (5th Cir. 2014). At best, his claims
amount to an arguable case for negligence or medical malpractice, neither of
which constitute deliberate indifference. See Gobert v. Caldwell, 463 F.3d 339,
346 (5th Cir. 2006). Moreover, Bailey’s vague and conclusional assertions fail
to demonstrate that the unknown pharmacist’s conduct rose to the level of
deliberate indifference in violation of the Eighth Amendment. See Easter v.
Powell, 467 F.3d 459, 463 (5th Cir. 2006). Second, although the State raised
affirmative defenses in its Martinez report, Bailey has shown no error in the
district court’s reliance on the report, which was otherwise proper under the
circumstances. See Parker v. Carpenter, 978 F.2d 190, 191 n.2 (5th Cir. 1992).
Third, the district court did not err in dismissing Bailey’s § 1983 complaint
without providing an opportunity to amend because the court had already
provided Bailey the opportunity, in the form of a more definite statement, to
put forth “his best case.” See Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir.
1998); see also Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994).
Finally, the record shows that Bailey was adequately able to
communicate his claims and has an understanding of court procedures. The
issue raised in Bailey’s § 1983 action, deliberate indifference to his serious
medical needs, is fact-dependent, not unduly complex, should be readily
understood by prisoners, and relied on factual matters that Bailey either
already knew or was capable of investigating. See Cupit v. Jones, 835 F.2d 82,
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No. 16-20218
84-86 (5th Cir. 1987). Because Bailey failed to show exceptional circumstances,
he has not shown that the district court clearly abused its discretion in denying
him court-appointed counsel. See id. at 86; Ulmer v. Chancellor, 691 F.2d 209,
212 (5th Cir. 1982).
AFFIRMED.
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