     Case: 10-30176 Document: 00511292780 Page: 1 Date Filed: 11/15/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         November 15, 2010
                                     No. 10-30176
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

FRANK CHARLES SMITH, JR.,

                                                   Plaintiff-Appellant

v.

R.G. HARRIS, D.D.S.; LARRY CALDWELL, M.D.; MANZOOR SHAH, M.D.;
STEPHANIE SLAUGHTER, R.N.; UNKNOWN THOMAS, R.N.,

                                                   Defendants-Appellees


                    Appeal from the United States District Court
                        for the Middle District of Louisiana
                               USDC No. 3:09-CV-10


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
       Frank Charles Smith, Louisiana prisoner # 120201, moves to proceed in
forma pauperis (IFP) on appeal following the district court’s certification
pursuant 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
acted with deliberate indifference by delaying extraction of two infected teeth
and 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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                                   No. 10-30176

court failed to set forth reasons for its denial of IFP status and that it improperly
granted the defendants’ motion for summary judgment because there existed a
material factual dispute, regarding whether he was receiving pain medication
during his complaints of dental pain, that precluded summary judgment.
      This court reviews the grant of summary judgment de novo. Dillon v.
Rogers, 596 F.3d 260, 266 (5th Cir. 2010). Summary judgment is appropriate “if
the pleadings, the discovery and disclosure materials on file, and any affidavits
show 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.” F ED. R. C IV. P. 56(c)(2)
      Prison officials violate the constitutional prohibition against cruel and
unusual punishment when they demonstrate deliberate indifference to a
prisoner’s serious medical needs, constituting an unnecessary and wanton
infliction of pain. See Wilson v. Seiter, 501 U.S. 294, 297 (1991). The Supreme
Court has adopted “subjective recklessness as used in the criminal law” as the
appropriate test for deliberate indifference. Farmer v. Brennan, 511 U.S. 825,
839-41 (1994). A prison official acts with deliberate indifference 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.”
Id. at 837.
      A delay in medical care violates the Eighth Amendment only if it is due to
deliberate indifference and the delay results in substantial harm. Mendoza v.
Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993). Negligence and medical malpractice
do not give rise to a § 1983 cause of action, and an inmate’s disagreement with
his medical treatment does not establish a constitutional violation. Varnado v.
Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991).
      While we do not agree that the claim is frivolous, we are persuaded that
the district court did not err in granting defendants’ motion for summary
judgment. See Rule 56(c)(2). Given that there is no dispute that Smith’s medical

                                         2
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                                 No. 10-30176

records reveal that he had been prescribed pain medication for other ailments
while he also sought dental treatment, Smith has established that at most Drs.
Harris and Shah were negligent in failing also to prescribe him pain medication,
which does not give rise to a deliberate indifference claim. See Mendoza, 989
F.2d at 195. Because Nurse Slaughter could not write prescriptions, Smith has
likewise failed to show that she acted with deliberate indifference by failing to
prescribe 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
AFFIRM the judgment in favor of all defendants.




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