UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_______________________

No. 95-20310 Summary Calendar _______________________

WILLIAM HARPER,

Plaintiff-Appellant,

versus

K V TRAN, DR., ET AL.,

Defendants-Appellees.

_________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas (CA-H-93-2291) _________________________________________________________________ January 8, 1996

Before JOLLY, JONES, and STEWART, Circuit Judges.

By EDITH H. JONES, Circuit Judge:*

Petitioner William Harper (Harper), a Texas prisoner,

appeals the district court’s dismissal of his pro se and in forma

pauperis complaint, purportedly pursuant to

(§

1983), that prison officials were deliberately indifferent to his

serious medical needs when assigning him work requirements.

Because the district court did not abuse its discretion when it

dismissed Harper’s complaint as frivolous, this court affirms.

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. I. FACTUAL BACKGROUND

Harper entered prison with various medical conditions

that restricted his ability to perform certain work assignments.

After two separate medical evaluations of Harper, Dr. Tran, a

prison physician, detailed his medical profile, indicating that

Harper’s activities should be limited to accommodate his third-

class hypertension; third-class degenerative disc disease; and

second-class vision. Although Harper complained that these

afflictions caused him significant pain, Dr. Tran was unable to

prescribe medicine for this pain because of the potential for

dangerous allergic reactions or cross actions with Harper’s

hypertension medicine.

Harper further complained that his pain mandated that he

be reassigned from his duties as an orderly in the administrative

segregation wing of the prison to a less strenuous assignment. As

an orderly, Harper’s duties included climbing flights of stairs to

deliver food to inmates; mopping and sweeping floors; and

transporting barrels of wet laundry. Harper requested a work

reassignment from his supervisor, Captain Booth, and from Dr. Tran.

Although Dr. Tran was not charged with determining work

assignments, Captain Booth gave Harper a work release. However,

Captain Simpson, supervisor of all inmate orderlies, did not

reassign Harper immediately. Meanwhile, Harper remained convinced

that continued work as an orderly endangered his health, so he

informed Warden Peterson of his problems through grievance forms.

2 Harper was eventually reassigned to less strenuous duty in the

officers’ dining room at the prison.

Harper’s complaint alleges that as a result of his

grueling work as an orderly, he suffers from excruciating,

recurring pain, has a severely limited range of motion, and has

difficulty completing even the most effortless work assignment. To

compensate him for his allegedly aggravated afflictions, Harper

seeks monetary damages of $665,000 from each defendant.

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

discretion. Eason v. Thaler,

(5th Cir. 1994). An in

forma pauperis complaint may be dismissed as frivolous under §

1915(d) if it lacks an arguable basis in law or fact. Booker v.

Koonce,

(5th Cir. 1993).

While “the treatment a prisoner receives in prison and

the conditions under which he is confined are subject to scrutiny

under the Eighth Amendment,” Farmer v. Brennan, ___ U.S. ___,

(1994), two requirements must be satisfied before

a constitutional violation can be established. Initially, the

treatment or condition “must be so serious as to deprive prisoners

of the minimal civilized measure of life’s necessities, as when it

denies the prisoner some basic human need.” Wood v. Edwards,

(5th Cir. 1995). Secondly, the prison official must

have been “deliberately indifferent to inmate health or safety.”

The Supreme Court has recently instructed that the appropriate

3 definition of deliberate indifference under the Eighth Amendment is

akin to the standard of “subjective recklessness as used in the

criminal law.” Farmer, ___ U.S. at ___,

.

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,

.

The facts alleged by Harper do not demonstrate deliberate

indifference to his medical condition in his work assignments.

Rather, as the district court correctly observed, even assuming his

allegations are true, Harper’s claims prove that his work

assignments were at worst, negligent. After all, careful review of

the record establishes that prison officials did not compel Harper

to complete his work assignments in a manner that would violate his

medical conditions. If his work assignments somehow led to that

unfortunate result, it was not because a prison official

consciously disregarded a threat to Harper’s health or safety. As

a result, Harper’s complaint is meritless because mere negligence

will not suffice to support a claim of deliberate indifference.

See Mendoza v. Lynaugh,

(5th Cir. 1993); Jackson

v. Cain,

(5th Cir. 1989). A negligent

assignment of work that is not cruel and unusual per se is simply

not unconstitutional. Jackson,

.

III. CONCLUSION

4 Because the district court did not abuse its discretion

when it dismissed Harper’s complaint as frivolous, its judgment is

AFFIRMED.

5