     Case: 14-11148      Document: 00513157569         Page: 1    Date Filed: 08/17/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                      No. 14-11148                              FILED
                                                                          August 17, 2015
                                                                           Lyle W. Cayce
ALEXANDER RAYMOND GESSA,
                                                                                Clerk

                                                 Plaintiff-Appellant

v.

DOCTOR ROBERT LEGRAND, JR.,

                                                 Defendant-Appellee


                  Appeals from the United States District Court
                       for the Northern District of Texas
                              USDC No. 6:14-CV-9


Before CLEMENT, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Proceeding pro se, Alexander Raymond Gessa, federal prisoner # 34283-
004, moves for leave to proceed in forma pauperis (IFP) on appeal from the
dismissal of his civil rights complaint as frivolous.                    See 28 U.S.C.
§ 1915(e)(2)(B)(i). He also moves for the appointment of counsel.
       In his complaint, Gessa alleged that Dr. Robert LeGrand, Jr., a
neurosurgeon to whom Gessa was referred by prison officials, was criminally
negligent and committed medical malpractice by operating on his left hand


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-11148

without first conducting the proper diagnostic tests and that he suffered
disfigurement and loss of use of his left hand as a result of Dr. LeGrand’s
conduct. Gessa also raised claims against Correctional Corporation of America
(CCA) and the CCA medical facility at the Eden Detention Center in Eden,
Texas, where Gessa was confined, but those claims were dismissed on Gessa’s
motion, leaving only Dr. LeGrand as a defendant. As the magistrate judge
determined, because Gessa raised claims pertaining to the medical care
received while in federal prison, his claims did not arise under 42 U.S.C. § 1983
but were governed by Bivens v. Six Unknown Named Agents, 403 U.S. 388
(1971). See Reeves v. City of Jackson, Miss., 608 F.2d 644, 649 n.2 (5th Cir.
1979).
      By moving to proceed IFP, Gessa is challenging the magistrate judge’s
certification that his appeal is not taken in good faith. See Baugh v. Taylor,
117 F.3d 197, 202 (5th Cir. 1997). Our inquiry into an appellant’s good faith
“is limited to whether the appeal involves legal 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). We may dismiss the
appeal sua sponte if it is frivolous. See Baugh, 117 F.3d at 202 n.24; 5TH CIR.
R. 42.2.
      Although Gessa disagrees with Dr. LeGrand’s medical determination
that the problem originated in the hand and elbow and asserts that Dr.
LeGrand was negligent for failing to discover the root of the problem, he has
failed to raise a constitutional claim.    Prison officials violate the Eighth
Amendment’s prohibition against cruel and unusual punishment when they
demonstrate deliberate indifference to a prisoner’s serious medical needs,
which amounts to an unnecessary and wanton infliction of pain. Estelle v.
Gamble, 429 U.S. 97, 104-05 (1976).       To prevail on a claim of deliberate


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                                  No. 14-11148

indifference to serious medical needs, a prisoner must “submit evidence that
prison officials refused to treat him, ignored his complaints, intentionally
treated him incorrectly, or engaged in any similar conduct that would clearly
evince a wanton disregard for any serious medical needs.” Gobert v. Caldwell,
463 F.3d 339, 346 (5th Cir. 2006) (internal quotation marks and citation
omitted).
      Nothing in the record indicates that Dr. LeGrand engaged in any conduct
evincing a wanton disregard for Gessa’s medical needs. The record shows that
Dr. LeGrand’s recommendation for surgery was based on tests showing
moderate bilateral carpal tunnel syndrome and a left ulnar neuropathy at the
elbow.      Moreover, Gessa’s claims that Dr. LeGrand was negligent and
committed malpractice do not give rise to a claim of deliberate indifference.
See id. Likewise, an incorrect diagnosis or the failure to alleviate a significant
risk that an official should have perceived, but did not, is not sufficient to
establish deliberate indifference. Domino v. Texas Dep’t of Criminal Justice,
239 F.3d 752, 756 (5th Cir. 2001).
      Gessa’s appeal lacks arguable merit and is therefore frivolous.         See
Howard, 707 F.2d at 220. Accordingly, his 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. Gessa’s motion for appointment of
counsel also is DENIED.
      The dismissal of this appeal and the district court’s dismissal of Gessa’s
complaint each count as a strike for purposes of 28 U.S.C. § 1915(g). See
Coleman v. Tollefson, 135 S. Ct. 1759, 1763 (2015). Gessa is WARNED that
once he accumulates 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
under imminent danger of serious physical injury. See § 1915(g).


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                             No. 14-11148

    IFP DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED;
APPOINTMENT OF COUNSEL DENIED.




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