Frank Smith, Jr. v. R. Harris, et al

Filing

UNPUBLISHED OPINION ORDER FILED. [10-30176 Affirmed] Judge: PEH , Judge: JES , Judge: CH. Mandate pull date is 12/06/2010; granting motion to proceed IFP in accordance with PLRA filed by Appellant Mr. Frank Charles Smith, Jr. [6556121-2] [10-30176]

Frank Smith, Jr. v. R. Harris,10-30176 Case: et al

Document: 00511292780 Page: 1 Date Filed: 11/15/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-30176 S u m m a r y Calendar November 15, 2010 Lyle W. Cayce Clerk

F R A N K CHARLES SMITH, JR., P la in t if f -A p p e lla n t v. R .G . HARRIS, D.D.S.; LARRY CALDWELL, M.D.; MANZOOR SHAH, M.D.; S T E P H A N I E SLAUGHTER, R.N.; UNKNOWN THOMAS, R.N., D e fe n d a n t s -A p p e lle e s

A p p e a l from the United States District Court fo r the Middle District of Louisiana U S D C No. 3:09-CV-10

B e fo r e HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges. P E R CURIAM:* F r a n k Charles Smith, Louisiana prisoner # 120201, moves to proceed in fo r m a pauperis (IFP) on appeal following the district court's certification p u r s u a n t to 28 U.S.C. § 1915(a)(3) that his appeal is taken in bad faith. In his 42 U.S.C. § 1983 complaint, Smith claimed that the defendants a c t e d with deliberate indifference by delaying extraction of two infected teeth a n d by failing to prescribe him pain medication. He argues here that the district

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Case: 10-30176 Document: 00511292780 Page: 2 Date Filed: 11/15/2010 No. 10-30176 c o u r t failed to set forth reasons for its denial of IFP status and that it improperly g r a n t e d the defendants' motion for summary judgment because there existed a m a t e r ia l factual dispute, regarding whether he was receiving pain medication d u r in g his complaints of dental pain, that precluded summary judgment. T h is court reviews the grant of summary judgment de novo. Dillon v. R o g e r s , 596 F.3d 260, 266 (5th Cir. 2010). Summary judgment is appropriate "if t h e pleadings, the discovery and disclosure materials on file, and any affidavits s h o w that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c)(2) 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, constituting an unnecessary and wanton in flic t io n of pain. See Wilson v. Seiter, 501 U.S. 294, 297 (1991). The Supreme C o u r t has adopted "subjective recklessness as used in the criminal law" as the a p p r o p r ia te test for deliberate indifference. Farmer v. Brennan, 511 U.S. 825, 8 3 9 -4 1 (1994). A prison official acts with deliberate indifference if he "knows of a n d disregards an excessive risk to inmate health or safety; the official must b o th be aware of facts from which the inference could be drawn that a s u b s t a n t ia l risk of serious harm exists, and he must also draw the inference." Id. at 837. A delay in medical care violates the Eighth Amendment only if it is due to d e lib e r a t e indifference and the delay results in substantial harm. Mendoza v. L y n a u g h , 989 F.2d 191, 195 (5th Cir. 1993). Negligence and medical malpractice d o not give rise to a § 1983 cause of action, and an inmate's disagreement with h is medical treatment does not establish a constitutional violation. Varnado v. L y n a u g h , 920 F.2d 320, 321 (5th Cir. 1991). While we do not agree that the claim is frivolous, we are persuaded that t h e district court did not err in granting defendants' motion for summary ju d g m e n t . See Rule 56(c)(2). Given that there is no dispute that Smith's medical 2

Case: 10-30176 Document: 00511292780 Page: 3 Date Filed: 11/15/2010 No. 10-30176 r e c o r d s reveal that he had been prescribed pain medication for other ailments w h ile he also sought dental treatment, Smith has established that at most Drs. H a r r is and Shah were negligent in failing also to prescribe him pain medication, w h ic h does not give rise to a deliberate indifference claim. See Mendoza, 989 F .2 d at 195. Because Nurse Slaughter could not write prescriptions, Smith has lik e w is e failed to show that she acted with deliberate indifference by failing to p r e s c r ib e him pain medication. See id. Smith also has not shown that the delay in extracting his teeth was due to deliberate indifference by the defendants. See id . We therefore GRANT Smith's motion to proceed IFP on appeal and A F F IR M the judgment in favor of all defendants.

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