IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-10521 Summary Calendar

ANSON VERNON MOORE, II,

Plaintiff-Appellant,

versus

GARY JOHNSON, Director Texas Department of Criminal Justice; SUSAN PAYNE, Lieutenant; BOBBY MORRIS, Sergeant; THOMAS B. DOHERTY, Correctional Offivcer III; OLIVER, Correctional Officer III, TEXAS DEPARTMENT FOR CRIMINAL JUSTICE, Unknown John and Jane Does, employees of TDCJ,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 1:99-CV-122-C -------------------- October 6, 2000

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Anson Vernon Moore II, pro se Texas prisoner # 814959, is

currently incarcerated by the Texas Department of Criminal

Justice - Institutional Division (“TDCJ-ID”). Moore brought a

complaint alleging that he was denied medical

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

1 treatment and that he lost “good time” credits. The district

court referred Moore’s complaint to Magistrate Judge Nancy M.

Koenig.

Moore’s complaint arose out of treatment he received for a

toenail fungus condition. On September 16, 1998, Moore was

working in a field and told the field boss, defendant Thomas

Doherty, that he was having foot pain associated with the toenail

condition. Doherty allegedly asked Moore if he was refusing to

work. Moore replied in the negative and asserted his need to see

a physician. Lieutenant Susan Payne was called, and after

evidently deciding that Moore was refusing to work, she

instructed defendant Bobby Morris to take Moore to “lockup,”

where he allegedly remained for a total of nine days.

Morris examined Moore’s feet, noted no bleeding, and told

Moore to put in a “sick call” to see a doctor. Moore did not see

a doctor until September 22, 1998, six days after he first

complained of pain. He was seen by health care personnel in the

prison clinic for his foot pain on September 16, 21, and 23 and

given a prescription on September 21, and some cream for his

toenails on September 23. He was also seen in the clinic for

unrelated problems on September 17, 25, 29, and October 6, but

records of those visits contain no mention of foot pain. The

condition purportedly left his toenails in such a condition that

they no longer grow properly, causing Moore discomfort. Moore

contends that when he was allowed to see a physician, he was

handcuffed and could not remove his boots for the examination.

2 The magistrate judge dismissed Moore’s claim as frivolous

pursuant to

(e)(2)(B)(i) and § 1915A(b)(1). A

prisoner’s complaint filed in forma pauperis (“IFP”) may be

dismissed as frivolous if it has no arguable basis in law or in

fact. See Siglar v. Hightower,

(5th Cir.

1997). A dismissal of an IFP complaint as frivolous is reviewed

for abuse of discretion. See

A prisoner has an Eighth Amendment right to be free from

cruel and unusual punishment, which may be violated if prison

officials exhibit deliberate indifference to the prisoner’s

serious medical needs. See Estelle v. Gamble,

(1976). Although Moore’s complaint does not specifically

cite the Eighth Amendment, the gravamen of his complaint is that

he seeks damages based on alleged delays or lack of proper

medical treatment, which implicates the Eighth Amendment. In

defining “deliberate indifference,” the Supreme Court has adopted

“subjective recklessness” as that term is used in the criminal

law. See Farmer v. Brennan,

(1994). Under

this definition, a prison official violates the Eighth Amendment

if he “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.”

.

Mere negligence on the part of the prison official does not

constitute deliberate indifference. See Jackson v. Cain,

(5th Cir. 1989).

3 Moore’s brief on appeal is woefully inadequate. Although he

disputes some minor details of the magistrate judge’s factual

conclusions, he does not dispute that he in fact received

treatment for his foot pain. He does not cite to any

jurisprudence or facts supporting his position that he was

subjected to deliberate indifference. Although pro se briefs are

construed liberally, even a pro se prisoner must brief issues

adequately in order to preserve them for appeal; otherwise, they

are deemed abandoned. See Yohey v. Collins,

(5th Cir. 1993).

Moreover, even giving Moore’s argument the most liberal

construction possible, he fails to demonstrate that the

magistrate judge abused her discretion in dismissing his

complaint. Moore was not denied medical treatment and was, in

fact, seen in the prison clinic on the day he first complained of

pain. There is no evidence in the record showing that the

treatment he received in the clinic was inadequate. At most, any

delays or inadequate treatment would constitute negligence, which

does not rise to the level of deliberate indifference. See

Stewart v. Murphy,

(5th Cir. 1999). Thus, the

magistrate judge did not abuse her discretion in dismissing the

complaint as frivolous. As for the loss of good time credits,

Moore’s brief contains no mention of that claim. Therefore, it

should be deemed abandoned. See Yohey,

.

Accordingly, this appeal is dismissed as frivolous. See

Siglar,

. Section 1915(g) of the Prison

4 Litigation Reform Act provides that a prisoner who has on three

or more prior occasions brought an action or appeal that was

dismissed on the grounds of being frivolous may not bring a civil

action or appeal a judgment in a civil action IFP unless he is in

imminent danger of serious physical injury.

(g).

Both the district court’s dismissal as frivolous and the

dismissal on appeal count as “strikes” for purposes of § 1915(g).

See Adepegba v. Hammons,

(5th Cir. 1996).

Thus, Moore has accumulated two strikes. Should he accumulate

three strikes, he may not proceed IFP in any civil action or

appeal filed while he is incarcerated or detained in any facility

unless he is in imminent danger of serious physical injury.

For the foregoing reasons Moore’s appeal is DISMISSED.

APPEAL DISMISSED. See 5th Cir. R. 42.2.

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