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

                                                                            FILED
                                                                           May 14, 2008
                                     No. 07-40418
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

LEONARD CLERKLEY

                                                  Plaintiff-Appellant

v.

UNKNOWN ROBERTS; CAPTAIN UNIDENTIFIED BRATTON; NURSE
UNKNOWN MCGUIRE; UNKNOWN ROUESHARD; PA UNKNOWN FINK

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 6:06-CV-356


Before STEWART, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Leonard Clerkley, Texas prisoner # 595191, filed a 42 U.S.C. § 1983
complaint against Defendants alleging a violation of his Eighth Amendment
rights. A magistrate judge conducted an evidentiary hearing and found the
complaint to be frivolous. We affirm.
       Clerkley alleged that while he was working in the prison barbershop, a
prison official named Roberts brought a broken “ultraviolet light box” used to


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                       No. 07-40418

sterilize barber utensils into the barbershop, left it there between one and three
days without a safety lid, and exposed Clerkley to harmful ultraviolet rays.
Clerkley asserts that this exposure resulted in eye injury. Clerkley states that
Roberts left the box despite the fact that those working in the barbershop,
including Clerkley, told Roberts that the box was in no condition to be used
because it did not have a safety lid to contain the ultraviolet rays.1 Clerkley
alleges that as a result of the exposure his eyes were swollen for at least a week.
He testified that he continues to have headaches and must use eye drops as a
result of the exposure.
       Clerkley also alleges that he received inadequate medical care for the
injuries he sustained as a result of the exposure. Although he was taken to the
infirmary the day after the exposure, and continued to receive medical attention
for his eye complaints, Clerkley claims that the medical personnel did not know
what they were doing and gave him conflicting stories of what caused his eye
trouble. For example, the first nurse that treated Clerkley told him that he had
a flash burn, but later stated that he did not know what was causing Clerkley’s
symptoms. Later when Clerkley saw Defendant Fink, a physician’s assistant,
Fink said that it was a virus, but did not give any medication and, according to
Clerkley, told him that by the time medication for the virus arrived the condition
would be resolved.        Clerkley’s final claim is against Defendant Bratton –
alleging that Bratton violated prison policy by failing to prepare an incident
report when Clerkley told him how the eye injury occurred.
       After filing his Section 1983 complaint, Clerkley agreed to proceed before
a magistrate judge. An evidentiary hearing, “in the nature of a motion for more
definite statement,” was conducted to focus the legal and factual bases of the
claim. See Spears v. McCotter, 766 F.2d 179, 181-82 (5th Cir. 1985), overruled
on other grounds by Neitzke v. Williams, 490 U.S. 319, 324 (1989). The result

       1
         A statement in Clerkley’s medical records indicates that other inmates exposed to the
ultraviolet light also complained of eye problems.

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was that the magistrate dismissed Clerkley’s complaint both as frivolous and as
failing to state a claim. 42 U.S.C. § 1915A. A claim is frivolous if it lacks “an
arguable basis in law or fact.” Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999).
We review such a dismissal de novo. Geiger v. Jowers, 404 F.3d 371, 373 (5th
Cir. 2005).
      On appeal, the dismissal of the claims against each Defendant is
challenged except for those against Bratton. The claims against Bratton,
therefore, are deemed abandoned. See Brinkmann v. Dallas County Dep. Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987).
      Simple negligence by a prison official that causes injury to an inmate is
not an Eighth Amendment violation. Davidson v. Cannon, 474 U.S. 344, 347
(1986). Absent intentional conduct, an Eighth Amendment claim requires that
a prison official have acted with deliberate indifference to the needs of the
inmate, exposing the inmate to a substantial risk of serious harm. Gobert v.
Caldwell, 463 F.3d 339, 345 (5th Cir. 2006). Deliberate indifference occurs when
the prison official (1) is aware of facts from which an inference of an excessive
risk to the prisoner’s health or safety could be drawn; and (2) actually draws an
inference that such potential for harm exists. Bradley v. Puckett, 157 F.3d 1022,
1025 (5th Cir. 1998). Whether the official has the required subjective knowledge
that a substantial risk exists “is a question of fact subject to demonstration in
the usual ways, including inference from circumstantial evidence . . . .” Hare v.
City of Corinth, 74 F.3d 633, 654 (5th Cir. 1996).
      Therefore, Clerkley must have made a plausible allegation that Roberts
knew of and disregarded an excessive risk that Clerkley would be exposed to
serious bodily injury as a result of exposure to the ultraviolet light emanating
from the broken piece of equipment. Lawson v. Dallas County, 239 F.3d 257, 262
(5th Cir. 2002). When evaluating the dismissal, we assume all of Clerkley’s
allegations are true. Hutchins v. McDaniels, 512 F.3d 193, 195 (5th Cir. 2007).


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We also incorporate the testimony given at the Spears hearing into the
pleadings. Eason v. Holt, 73 F.3d 600, 603 (5th Cir. 1996).
      We accept as true that Defendant Roberts, who required that the
ultraviolet box be used in the barbershop, was aware that the device was not in
proper working condition.2 There also was evidence that more than one inmate
informed her that the box had been stored away because it lacked a lid to contain
the ultraviolet rays and, in their opinion, it was not in a condition to be used.
She left the box in the barbershop for one to three days despite their concerns.
At his Spears hearing, Clerkley equated being in the room when the box was
operating to being in a tanning bed without eye protection. Our decision is
whether those allegations are sufficient to support factual inferences that
Roberts was more than merely negligent.
      We have little doubt that the Spears hearing uncovered sufficient evidence
that Roberts was aware that the device was not properly functioning, even if at
a trial that allegation might be disproven. Whether she was aware in a general
sense that ultraviolet light being emitted in that way might cause serious bodily
injury, and whether she drew that conclusion and then deliberately chose to
ignore the risk, are the real questions. The evidence that some of the inmates
warned Roberts of their perception of danger does not establish the danger. It
does show that Roberts was aware of the perception. We still must find that
Roberts was aware of facts – not just the inmates’ concerns – from which an
inference of a sufficient risk to a prisoner’s health could arise, and that she
actually drew that inference but was deliberately indifferent to it.
      A recent decision from this court reiterated the level of risk and of harm
that must be shown. We stated that there must be evidence in an Eighth
Amendment claim such as this of “substantial risk of serious harm.” Hernandez
v. Velasquez, No. 06-40426, 2008 WL 820999 (5th Cir. Mar. 28, 2008). That

      2
         There was no testimony from Defendant Roberts at Clerkley’s Spears hearing and no
affidavit or other evidence from Roberts in the record.

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significant level of risk and of harm that is required explains the outcome in one
of this court’s precedents relied upon by the magistrate judge. We determined
that prison officials had not committed an Eighth Amendment violation when
they failed to provide an inmate adequate protection when he was ordered to
chop wood and a piece of bark injured an eye. Bowie v. Procunier, 808 F.2d 1142,
1143 (5th Cir. 1987). At most, the claim supported that officials had been
negligent.
      There can be a difference of perception of which eye injury is more likely
or serious – being hit by chips while chopping wood or being injured by these
ultraviolet rays. For example, wood chips may not hit the inmate’s eyes, but the
ultraviolet light presumably will be seen to some extent by whoever is in the
room. Yet the distinction is one of degree. As in Bowie at the chopping block,
eye injury was a risk in this barbershop. By not looking directly into the light
and taking other precautions, inmates’ exposure might be minimal. Roberts’s
placement of this device in the barbershop did not create a meaningfully distinct
risk of eye injury than did the wood chopping in Bowie. Roberts’s actions were
at most negligent. The allegations no more support deliberate indifference to a
substantial risk of serious harm than did the insufficient allegations in Bowie.
The district court did not err in holding that Clerkley’s complaint on its face does
not state a plausible Eighth Amendment claim as to Roberts.
      Clerkley also alleged incompetent medical treatment after the accident.
This is not the type of harm cognizable as a violation under the Eighth
Amendment. Estelle v. Gamble, 429 U.S. 97, 106 (1976) (“a complaint that a
physician has been negligent in diagnosing or treating a medical condition does
not state a valid claim of medical mistreatment under the Eighth Amendment”);
Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991).
      A showing of deliberate indifference with regard to medical treatment
requires the inmate to submit evidence that prison officials “‘refused to treat
him, ignored his complaints, intentionally treated him incorrectly, or engaged

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in any similar conduct that would clearly evince a wanton disregard for any
serious medical needs.’” Domino v. Texas Dep’t of Criminal Justice, 239 F.3d
752, 756 (5th Cir. 2001) (citation omitted). Clerkley does not allege this type of
harm. Clerkley’s allegations are that he disagreed with the treatment he
received and that the staff was negligent in its diagnosis or treatment. This does
not give rise to a cause of action under Section 1983, and those claims were
properly dismissed. Therefore, we affirm the dismissal of the claims against
Defendants McGuire, Roueshard, and Fink.
      For these reasons the decision of the district court is AFFIRMED.




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