Johnny Atkins v. B Lofton, et al

Filing 511081478

Case: 09-30325

Document: 00511081478

Page: 1

Date Filed: 04/15/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-30325 S u m m a r y Calendar April 15, 2010 Lyle W. Cayce Clerk

J O H N N Y LEE ATKINS, P l a in t i f f - A p p e l l a n t v. B LOFTON; ERT HALL; EMERGENCY RESPONSE TEAM, Caddo Correctional C e n t e r ; NURSE JACKSON; STEVE PRATOR; CADDO CORRECTIONAL C E N T E R ; DEPUTY MCDANIEL; DEPUTY COLEMAN; DEPUTY BRUCE; S E R G E A N T TROUDT; DEPUTY FLINN; SERGEANT WALKER; DEPUTY S P E IG H T , D e fe n d a n ts -A p p e lle e s

A p p e a l from the United States District Court fo r the Western District of Louisiana U S D C No. 5:06-CV-785

B e fo r e KING, STEWART, and HAYNES, Circuit Judges. P E R CURIAM:* J o h n n y Lee Atkins, Louisiana prisoner # 52330, moves this court to p r o c e e d in forma pauperis (IFP) on appeal following the district court's order g r a n t in g summary judgment in favor of the defendants and dismissing his 42 U .S .C . § 1983 complaint and challenges the district court's certification that the

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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a p p e a l is not taken in good faith pursuant to 28 U.S.C. § 1915(a)(3). On remand, t h e district court provided written reasons for the certification, noting that A tk in s could not prove that the defendants treated him in a manner that would r is e to the level of a constitutional violation. Atkins has filed a supplemental b rie f in support of his IFP motion contending that he can demonstrate that the d e f e n d a n t s violated his constitutional rights. W e may dismiss the appeal sua sponte when it is apparent that an appeal m a y be meritless. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); 5TH C IR. R. 42.2. To raise a nonfrivolous issue, the movant must demonstrate that h is "appeal involves legal points arguable on their merits." Howard v. King, 707 F .2d 215, 219-20 (5th Cir. 1983) (internal quotation marks and citation omitted). A t k in s filed a pro se civil rights complaint against the Sheriff of Caddo P a r i s h , several Caddo Parish Sheriff Deputies, members of the Caddo C o r r e c t i o n a l Center (CCC) emergency response team (ERT), and various e m p lo y e e s of the CCC, in which he alleged that the defendants did not properly r e s p o n d to or treat the back injury he claims he sustained as a result of a fall in h is cell at the CCC on April 4, 2006. He also alleged that the ERT mishandled h im when moving him by stretcher to the infirmary for treatment and that, as a result, he fell off the stretcher. Essentially, he claims that he did not receive th e kind of medical treatment or the compassion and respect from the CCC staff t h a t he believes he should have received and that he continued to experience p a in resulting from the incident notwithstanding treatment. P r is o n officials violate the constitutional prohibition against cruel and u n u s u a l punishment when they demonstrate deliberate indifference to a p r is o n e r 's serious medical needs. Wilson v. Seiter, 501 U.S. 294, 297 (1991). A s h o w in g of deliberate indifference requires the inmate to submit evidence that p r is o n officials "refused to treat him, ignored his complaints, intentionally t r e a t e d him incorrectly, or engaged in any similar conduct that would clearly e v in c e a wanton disregard for any serious medical needs." Domino v. Texas Dep't 2

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o f Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001) (internal quotation and cita tion omitted). A tk in s has not established that any defendant was deliberately indifferent t o his medical needs. He testified that he did not believe that the ERT intended fo r the stretcher to collapse or for him to fall or to be injured, and there is n o t h in g in the record to indicate otherwise. At most, his unfortunate fall from t h e stretcher was the result of the ERT's carelessness or negligence, neither of w h ic h constitutes deliberate indifference. Gobert v. Caldwell, 463 F.3d 339, 346 (5 th Cir. 2006). T h e summary judgment evidence also demonstrates that Atkins received m e d ic a l attention and treatment after the incident, that he was referred to an o u ts id e physician for evaluation and treatment, and that he continued to receive t r e a t m e n t at the CCC infirmary upon request. A prisoner's disagreement with his medical treatment does not constitute d e lib e r a te indifference, absent exceptional circumstances. Gobert, 463 F.3d at 3 4 6 . Further, where deficiencies in medical treatment were minimal, continuing p a i n alone does not constitute a constitutional violation. Mayweather v. Foti, 9 5 8 F.2d 91, 91 (5th Cir. 1992). A t k in s has failed to allege facts demonstrating a constitutional violation.1 H is appeal lacks any issue of arguable merit and is therefore frivolous. See H o w a r d , 707 F.2d at 220. Accordingly, his motion to proceed IFP on appeal is d e n ie d , and his appeal is dismissed. See Baugh, 117 F.3d at 202 n.24; 5TH CIR. R . 42.2. The dismissal of this appeal counts as a strike under 28 U.S.C. § 1915(g). S e e § 1915(g); Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1995). A tk in s has at least one prior strike. See Atkins v. Avoyelles Parish Sheriff's

We do not suggest that we condone any rude or insensitive treatment Atkins may have received. However, rudeness or lack of compassion alone are insufficient to support a cause of action against these parties.

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Date Filed: 04/15/2010

O ffic e , No. 07-CV-1059 (W.D. La. 2007).

Atkins is cautioned that if he

a c c u m u la te s three strikes, he will not be allowed to proceed IFP in any civil a c t io n or appeal filed while he is detained or incarcerated in any facility unless h e is under imminent danger of serious physical injury. See § 1915(g). I F P MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING IS S U E D

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