Gray v. Bradley
Gray v. Bradley
Opinion
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 00-60896 Conference Calendar
ROBERT L. GRAY,
Plaintiff-Appellant,
versus
JODY BRADLEY; LISA LEE,
Defendants-Appellees.
-------------------- Appeal from the United States District Court for the Southern District of Mississippi USDC No. 5:99-CV-161-BrS -------------------- February 20, 2002
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Robert L. Gray, Mississippi inmate #44684, proceeding pro se
and in forma pauperis (“IFP”), appeals the district court’s
dismissal as frivolous, pursuant to
28 U.S.C. § 1915(e), of his
civil rights complaint. Gray contends that the defendants did
not provide requested and necessary medical treatment for his
asthma and bronchitis from September 1998 until February 1999.
Gray asserts that the denial of treatment caused his condition to
worsen.
* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 00-60896 -2-
We review the dismissal of claims as frivolous for an abuse
of discretion. Siglar v. Hightower,
112 F.3d 191, 193(5th Cir.
1997). The Eighth Amendment protects an inmate from improper
medical care if the care is “sufficiently harmful to evidence
deliberate indifference to serious medical needs.” Estelle v.
Gamble,
429 U.S. 97, 106(1976). To establish deliberate
indifference, the prisoner must present “facts clearly evincing
‘wanton’ actions on the part of the defendants.” Johnson v.
Treen,
759 F.2d 1236, 1238(5th Cir. 1985). Negligence, medical
malpractice, and an inmate’s disagreement with his medical
treatment do not give rise to a
42 U.S.C. § 1983cause of action.
Varnado v. Lynaugh,
920 F.2d 320, 321(5th Cir. 1991).
Gray has not alleged wanton conduct amounting to deliberate
indifference to his serious medical needs. Estelle,
429 U.S. at 106; Johnson,
759 F.2d at 1238. At most, his allegations
demonstrate negligent action and disagreement with the treatment
that he received. Varnado,
920 F.2d at 321. The district
court’s dismissal was not an abuse of discretion.
Gray has abandoned his claim that the defendants denied him
adequate medical treatment for an abscessed tooth by failing to
assert the claim in this court. Brinkmann v. Dallas County
Deputy Sheriff Abner,
813 F.2d 744, 748(5th Cir. 1987).
Gray’s appeal is without arguable merit and is dismissed as
frivolous. See 5TH CIR. R. 42.2; Howard v. King,
707 F.2d 215, 219-20(5th Cir. 1983). The dismissal of the appeal as frivolous
and the district court’s dismissal of Gray’s
42 U.S.C. § 1983complaint as frivolous each count as “strikes” under the No. 00-60896 -3-
three-strikes provision of
28 U.S.C. § 1915(g). See Adepegba v.
Hammons,
103 F.3d 383, 387-88(5th Cir. 1996);
28 U.S.C. § 1915(e)(2)(B)(i). Gray is CAUTIONED that if he accumulates a
third “strike” under
28 U.S.C. § 1915(g), he will not be able to
proceed IFP in any civil action or appeal filed while he is
incarcerated or detained in any facility unless he is under
imminent danger of serious physical injury. See
28 U.S.C. § 1915(g).
APPEAL DISMISSED; THREE-STRIKES WARNING ISSUED.
Reference
- Status
- Unpublished