     Case: 09-30325     Document: 00511081478          Page: 1    Date Filed: 04/15/2010




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

                                                  FILED
                                                                            April 15, 2010
                                     No. 09-30325
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

JOHNNY LEE ATKINS,

                                                   Plaintiff-Appellant

v.

B LOFTON; ERT HALL; EMERGENCY RESPONSE TEAM, Caddo Correctional
Center; NURSE JACKSON; STEVE PRATOR; CADDO CORRECTIONAL
CENTER; DEPUTY MCDANIEL; DEPUTY COLEMAN; DEPUTY BRUCE;
SERGEANT TROUDT; DEPUTY FLINN; SERGEANT WALKER; DEPUTY
SPEIGHT,

                                                   Defendants-Appellees


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:06-CV-785


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Johnny Lee Atkins, Louisiana prisoner # 52330, moves this court to
proceed in forma pauperis (IFP) on appeal following the district court’s order
granting summary judgment in favor of the defendants and dismissing his 42
U.S.C. § 1983 complaint and challenges the district court’s certification that the


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-30325    Document: 00511081478 Page: 2        Date Filed: 04/15/2010
                                 No. 09-30325

appeal is not taken in good faith pursuant to 28 U.S.C. § 1915(a)(3). On remand,
the district court provided written reasons for the certification, noting that
Atkins could not prove that the defendants treated him in a manner that would
rise to the level of a constitutional violation. Atkins has filed a supplemental
brief in support of his IFP motion contending that he can demonstrate that the
defendants violated his constitutional rights.
      We may dismiss the appeal sua sponte when it is apparent that an appeal
may be meritless. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); 5 TH
C IR. R. 42.2. To raise a nonfrivolous issue, the movant must demonstrate that
his “appeal involves legal points arguable on their merits.” Howard v. King, 707
F.2d 215, 219-20 (5th Cir. 1983) (internal quotation marks and citation omitted).
      Atkins filed a pro se civil rights complaint against the Sheriff of Caddo
Parish, several Caddo Parish Sheriff Deputies, members of the Caddo
Correctional Center (CCC) emergency response team (ERT), and various
employees of the CCC, in which he alleged that the defendants did not properly
respond to or treat the back injury he claims he sustained as a result of a fall in
his cell at the CCC on April 4, 2006. He also alleged that the ERT mishandled
him when moving him by stretcher to the infirmary for treatment and that, as
a result, he fell off the stretcher. Essentially, he claims that he did not receive
the kind of medical treatment or the compassion and respect from the CCC staff
that he believes he should have received and that he continued to experience
pain resulting from the incident notwithstanding treatment.
      Prison officials violate the constitutional prohibition against cruel and
unusual punishment when they demonstrate deliberate indifference to a
prisoner’s serious medical needs. Wilson v. Seiter, 501 U.S. 294, 297 (1991). A
showing of deliberate indifference requires the inmate to 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.” Domino v. Texas Dep’t

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                                  No. 09-30325

of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001) (internal quotation and
citation omitted).
      Atkins has not established that any defendant was deliberately indifferent
to his medical needs. He testified that he did not believe that the ERT intended
for the stretcher to collapse or for him to fall or to be injured, and there is
nothing in the record to indicate otherwise. At most, his unfortunate fall from
the stretcher was the result of the ERT’s carelessness or negligence, neither of
which constitutes deliberate indifference. Gobert v. Caldwell, 463 F.3d 339, 346
(5th Cir. 2006).
      The summary judgment evidence also demonstrates that Atkins received
medical attention and treatment after the incident, that he was referred to an
outside physician for evaluation and treatment, and that he continued to receive
treatment at the CCC infirmary upon request.
      A prisoner’s disagreement with his medical treatment does not constitute
deliberate indifference, absent exceptional circumstances. Gobert, 463 F.3d at
346. Further, where deficiencies in medical treatment were minimal, continuing
pain alone does not constitute a constitutional violation. Mayweather v. Foti,
958 F.2d 91, 91 (5th Cir. 1992).
      Atkins has failed to allege facts demonstrating a constitutional violation.1
His appeal lacks any issue of arguable merit and is therefore frivolous. See
Howard, 707 F.2d at 220. Accordingly, his motion to proceed IFP on appeal is
denied, and his appeal is dismissed. See Baugh, 117 F.3d at 202 n.24; 5 TH C IR.
R. 42.2.
      The dismissal of this appeal counts as a strike under 28 U.S.C. § 1915(g).
See § 1915(g); Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1995).
Atkins has at least one prior strike. See Atkins v. Avoyelles Parish Sheriff’s


      1
          We do not suggest that we condone any rude or insensitive treatment Atkins may
have received. However, rudeness or lack of compassion alone are insufficient to support a
cause of action against these parties.

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                                No. 09-30325

Office, No. 07-CV-1059 (W.D. La. 2007).         Atkins is cautioned that if he
accumulates three strikes, he will not be allowed to proceed IFP in any civil
action or appeal filed while he is detained or incarcerated in any facility unless
he is under imminent danger of serious physical injury. See § 1915(g).
      IFP MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED




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