     Case: 12-30774       Document: 00512118452         Page: 1     Date Filed: 01/18/2013




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

                                                                            FILED
                                                                         January 18, 2013
                                     No. 12-30774
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

WILLIAM MERCER,

                                                  Plaintiff-Appellant

v.

UNITED STATES OF AMERICA; W.A. SHERROD; UNITED STATES
BUREAU OF PRISONS; STAFF OF UNITED STATES PENITENTIARY
POLLOCK; MR. CEASOR,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:11-CV-1497


Before JONES, DENNIS and HAYNES, Circuit Judges.
PER CURIAM:*
       William Mercer, federal prisoner # 15996-016, seeks leave to proceed in
forma pauperis (IFP) on appeal of the district court’s dismissal of his civil rights
complaint which was construed as arising under Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). The district court
dismissed his action pursuant to 28 U.S.C. § 1915(e)(2)(B) for failing to state a


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 12-30774     Document: 00512118452       Page: 2   Date Filed: 01/18/2013

                                   No. 12-30774

claim upon which relief can be granted. By moving for leave to proceed IFP,
Mercer is challenging the district court’s certification that his appeal is not taken
in good faith because it is frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 (5th
Cir. 1997); § 1915(a)(3); FED. R. APP. P. 24(a)(5).
      Mercer argues that his complaint clearly demonstrated that defendant
Dr. Ceasor acted with deliberate indifference to his medical needs when he failed
to provide Mercer with the special shoes that he required in light of his handicap
and instead provided a piece of plastic to be inserted into his shoes. While
asserting that the appliance provided did not alleviate his pain, he further
contended that he suffered increased pain in his upper body because the
prosthetic leg made by Dr. Ceasor was wrong for his bone structure.
      When reviewing a dismissal for failure to state a claim, all well-pleaded
facts are accepted as true and are viewed in the light most favorable to the
plaintiff. In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir.
2007). To state a claim for unconstitutional denial of medical treatment, a
convicted prisoner must show that medical care was denied or delayed and that
this denial or delay constituted deliberate indifference to his serious medical
needs. Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991).
      Accepting Mercer’s allegations against Dr. Ceasor as true, they do not
reflect that the doctor acted with deliberate indifference to Mercer’s serious
medical needs, but rather indicate that Mercer disagreed with the doctor’s choice
of treatment, which does not support a constitutional violation. Id. Assuming
that Mercer’s complaints about the manner in which Dr. Ceasor constructed his
prosthetic leg is being asserted as a separate claim in this case, these allegations
at best assert a claim of medical malpractice or negligence against the doctor,
which do not state a constitutional claim. See Varnado, 920 F.2d at 321.
      Therefore, Mercer has not shown that he will raise a nonfrivolous issue for
appeal with respect to the district court’s dismissal of the claims related to the
medical care he received. Mercer has not shown that his appeal involves “legal

                                         2
    Case: 12-30774     Document: 00512118452     Page: 3   Date Filed: 01/18/2013

                                 No. 12-30774

points arguable on their merits (and therefore not frivolous).” Howard v. King,
707 F.2d 215, 220 (5th Cir. 1983) (internal quotation marks and citation
omitted). Accordingly, Mercer’s motion for leave to proceed IFP on appeal is
denied, and his appeal is dismissed as frivolous. See Baugh, 117 F.3d at 202 &
n.24; 5TH CIR. R. 42.2.
      Mercer is advised that the district court’s dismissal of his complaint and
this court’s dismissal of his appeal as frivolous each count as a strike for
purposes of § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir.
1996). Mercer is cautioned that if he accumulates three strikes under § 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 § 1915(g).
      IFP DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED.




                                          3
