               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT

                       ______________________

                            No. 00-60731
                       ______________________

LARRY WILLIAMS,

                                                 Plaintiff-Appellee,

                               versus

JOHN BEARRY, Etc; Et AL,

                                                Defendants,

JOHN BEARRY, Doctor,

                                                Defendant-Appellant.

_________________________________________________________________

      Appeal from the United States District Court for the
                 Northern District of Mississippi
                           (4:98-CV-236)
_________________________________________________________________
                         September 7, 2001

Before KING, Chief Judge, JOLLY and BENAVIDES, Circuit Judges.

PER CURIAM:1

     Dr. John Bearry, Medical Director of the Mississippi State

Penitentiary at Parchman, Mississippi (“Parchman”), appeals the

judgment of the district court finding him liable for $12,000 for

his deliberate indifference to the serious medical needs of Larry

Williams, Mississippi prisoner # 53814.   Williams contended below

     1
      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this opinion should not be published and is not precedent except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
and on appeal that Dr. Bearry failed to provide him with the

prescription pain medication ordered by his neurosurgeon after his

back surgery.         We find that Dr. Bearry’s actions did not amount to

deliberate        indifference,    and   we    REVERSE   the    judgment    of   the

district court.

                                         I

       Williams entered the Rankin County Correctional Facility on

January 9, 1996 on a conviction for armed robbery.                  Williams was

transferred to Parchman in April 1996, and claims that he began

complaining of back pain in July 1996 but that nothing was done

until October 1997 when an MRI revealed stenosis in his spinal

column.         While at Parchman, Williams complained of numerous other

medical problems as well.          Williams had a myelogram on April 15,

1998       at   the   University   Medical      Center   (“UMC”)    in     Jackson,

Mississippi and received a prescription for Tylox,2 a narcotic pain

reliever, for a severe headache.              In order to receive the Tylox or

any other narcotic medication Williams had to remain in the prison

hospital, but Williams chose not to do so.                     Williams had back

surgery on April 28, 1998 at UMC.             On his discharge from UMC on May

1, the medical records show that Williams’ physician prescribed

Flexeril, a muscle relaxant, Ibuprofen for pain and inflammation,

and Tylox.        Dr. Bearry testified that the physician at UMC did not


       2
      Tylox is a narcotic prescription pain medication containing
oxycodone and Tylenol used for relief of moderate and moderately
severe pain. See Physician’s Desk Reference, 2398 (2001).

                                         2
order Tylox     when   Williams   was        discharged   from   UMC,   but   that

Williams was discharged on Ibuprofen and Flexeril only.                 Williams

and Dr.   Bearry   testified      that       Williams   received   Darvocet,3 a

somewhat weaker narcotic pain medication, for one week following

Williams’ surgery, although Darvocet does not appear in Williams’

medication records from Parchman.                After one week, Dr. Bearry

discontinued the Darvocet.         Dr. Bearry testified that Williams’

wound was healing appropriately and that it was proper to stop

narcotic pain medication at that time.             Dr. Bearry also testified

that generally narcotic pain medication should not be given to a

patient such as Williams who has chronic back pain.                Nevertheless,

Williams testified that he continued to suffer from and complain of

severe pain. Dr. Bearry provided Williams with 600 milligram doses

of Ibuprofen.

     On May 11, 1998 Williams returned to UMC for a followup

examination.    Williams testified that he still had staples in his

back from the surgery and that he suffered excruciating pain during

the drive to UMC because he had not received his prescribed pain

medication.     Williams told his physician at UMC that he had not

been receiving his prescribed pain medicines.              The physician gave

Williams an injection of Toradol,4 a nonsteroidal anti-inflammatory

     3
      Darvocet is a narcotic prescription pain medication used for
relief of mild to moderate pain. See Physician’s Desk Reference,
1708 (2001).
     4
      Toradol is a nonsteroidal, anti-inflammatory prescription
drug used for acute and long-term management of osteoarthritis and

                                         3
drug (“NSAID”), and faxed a note to the Mississippi Department of

Corrections       (“MDOC”)   physicians     asking   them   to   note    the   UMC

discharge order for pain medication for Williams, including Lodine5

and Ibuprofen.        Dr. Bearry testified that Lodine was not on the

Parchman formulary,6 but that it was in the same class as Ibuprofen

and he gave Williams other NSAIDs.           He also stated in an affidavit

that       a   combination   of   Lodine    and   Williams’      other   gastric

medications would have been very difficult on Williams’ stomach.

                                       II

       Williams initially filed a 42 U.S.C. § 1983 civil rights

action against:        Bearry; James Anderson, the MDOC Commissioner;

Walter Booker, the MDOC Superintendent; and Larry Hardy, the Legal

Claims Adjudicator. Williams alleged that the defendants denied or

delayed adequate medical care for his serious back problem, and

that they denied him adequate pain medication as prescribed by the

UMC physician following his back surgery.              The magistrate judge

recommended that Williams’ claims against Anderson, Booker, and

Hardy be dismissed for failure to state a claim because Williams

did not allege that they were personally involved in the alleged


rheumatoid arthritis and pain.             See Physician’s Desk Reference,
2789 (2001).
       5
      Lodine is a nonsteroidal anti-inflammatory drug which has
anti-inflammatory, analgesic and antipyretic characteristics. See
Physician’s Desk Reference, 3392 (2001).
       6
      A formulary is a “book containing the names of pharmaceutical
substances and listing their uses.” American Heritage Dictionary,
517 (1981).

                                       4
denial of adequate medical care.           The magistrate judge further

recommended that Williams’ claim against Dr. Bearry proceed to

trial.     The district court adopted the magistrate judge’s report

and recommendation.      Dr. Bearry then filed a motion for summary

judgment, which the magistrate judge denied, and he proceeded to

conduct a bench trial. After the bench trial, the magistrate judge

issued a report and recommendation that the district court find Dr.

Bearry did not delay or deny medical care for Williams’ back

injury.7    The magistrate judge recommended that the district court

find that Dr. Bearry was deliberately indifferent to Williams’

serious    medical    needs   through    his   failure   to   provide   the

prescription pain medication which the neurosurgeon ordered on

Williams’ discharge from the UMC hospital and again at his follow-

up examination.      The magistrate judge further recommended that the

district court enter a judgment in favor of Williams and that he be

awarded $12,000 in damages.      Dr. Bearry filed timely objections to

the magistrate judge’s report.          The district court overruled Dr.

Bearry’s objections and adopted the magistrate judge’s report,

entered a judgment in favor of Williams, and ordered Dr. Bearry to

pay court costs and $12,000 in damages to Williams.            Dr. Bearry

timely filed a notice of appeal.

                                   III

     Dr. Bearry challenges the district court’s determination that


     7
      Williams has not appealed this finding.

                                    5
he was deliberately indifferent to the serious medical needs of

Williams.    Deliberate indifference is a conclusion of law.               Walker

v. Butler, 967 F.2d 176, 178 (5th Cir. 1992).                      In reviewing

judgments   on   the    merits   in    non-jury     civil   cases,   we    review

conclusions of law de novo.            Gabriel v. City of Plano, 202 F.3d

741, 745    (5th Cir. 2000).

       Williams bases his claims on the Eighth Amendment to the

United States Constitution’s prohibition of cruel and unusual

punishment.       Prison      officials      violate      this   constitutional

proscription when they act with deliberate indifference to a

prisoner’s serious medical needs, that causes an unnecessary and

wanton infliction of pain.            Wilson v. Seiter, 501 U.S. 294, 297

(1991);    Estelle     v.   Gamble,    429   U.S.   97,   106    (1976).     Mere

negligence or “inadvertent failure to provide adequate medical

care” do not suffice.         Id. at 105-06.        “The legal conclusion of

‘deliberate indifference[]’ . . . must rest on facts clearly

evincing ‘wanton’ actions on the part of the defendants.”                  Johnson

v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985).              Cases have defined

“wanton” as “reckless–-without regard to the rights of others . .

. .”    Id. at 1238, quoting Smith v. Wade, 461 U.S. 30, 39 n. 8

(1983).

       A prison official acts with deliberate indifference only if

“he knows of and disregards an excessive risk to inmate health or

safety.”    Farmer v. Brennan, 511 U.S. 825, 837 (1994); Reeves v.



                                         6
Collins, 27 F.3d 174, 176 (5th Cir. 1994) (applying Farmer to

medical claims). This requires not only that the official be aware

of the facts from which the inference could be drawn that a

substantial risk of serious harm exists, but also that he actually

draw the inference.     Farmer, 511 U.S. at 837.

     Although the medical records do not reflect that Williams

received Darvocet or Tylox following his surgery, both Williams and

Dr. Bearry testified that Williams did receive Darvocet for one

week.   After Williams’ return visit to UMC and his UMC physician’s

fax to the Parchman hospital, Dr. Bearry continued Williams on

NSAIDs.      The   physicians   at   Parchman   were   Williams’   primary

physicians, and the physicians at UMC were consulting doctors.          It

remained within the discretion of Dr. Bearry to provide Williams

with appropriate post-operative care. Dr. Bearry provided Williams

with narcotic pain medication for a week, as well as other pain

medication and anti-inflammatory drugs.         Although Dr. Bearry did

not follow the exact regimen ordered by the UMC physicians, Dr.

Bearry’s actions did not amount to deliberate indifference to the

serious medical needs of Williams, within the meaning of the Eighth

Amendment.

                                     IV

     For the foregoing reasons, we REVERSE the district court’s

entry of judgment in favor of Williams and REMAND for dismissal of

the complaint.



                                     7
REVERSED and REMANDED for entry of judgment of dismissal.




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