     Case: 09-10471     Document: 00511058214          Page: 1    Date Filed: 03/22/2010




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

                                                  FILED
                                                                           March 22, 2010

                                     No. 09-10471                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



GILBERTO IRUEGAS,

                                                   Plaintiff–Appellant
v.

SERGEANT NFN POE, French Robertson Unit; DOYLE LEE, Officer C.O.4.
French Robertson Unit; NFN CIDILLO, Officer C.O.3. French Robertson
Unit; DR. ADEL NAFRAWI, Medical Department French Robertson Unit;
DEBORA CALDWELL, (P.A.) Medicial Department French Robertson Unit,

                                                   Defendants–Appellees




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 1:08-CV-91


Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Gilberto Iruegas appeals the dismissal with prejudice of his 28 U.S.C.
§ 1983 suit alleging deliberate indifference to his health, safety, and serious
medical needs, against various security and medical employees of the Texas
Department of Criminal Justice (“Defendants”). The magistrate judge dismissed


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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Iruegas’s suit as frivolous after holding a Spears hearing. Spears v. McCotter,
766 F.2d 179 (5th Cir. 1985), overruled on other grounds, Neitzke v. Williams,
490 U.S. 319, 324 (1989)). Iruegas argues that because he had retained counsel,
the Spears hearing should not have been conducted. Iruegas also argues that
the magistrate judge erroneously failed to allow cross-examination or properly
identify and authenticate any documents, and that Iruegas’s testimony
established a prima facie case of deliberate indifference.
      Because 28 U.S.C. § 1915A(a) requires screening of all in forma pauperis
suits by a prisoner against government officials and § 1915(e)(2)(B) mandates
dismissal of frivolous in forma pauperis suits, the magistrate judge did not err
by conducting a Spears hearing despite Iruegas’s retention of counsel.
Additionally, because Defendants did not introduce any witnesses or documents
at the Spears hearing, Iruegas’s argument that the magistrate judge committed
reversible error by failing to allow cross-examination or to properly identify and
authenticate any documents entirely lacks merit. Finally, because Iruegas’s
complaint lacks an arguable basis in either law or fact, we affirm the magistrate
judge’s dismissal of his § 1983 suit as frivolous.
               I. FACTUAL AND PROCEDURAL HISTORY
      While confined as an administrative segregation inmate, Iruegas slipped
as he walked from the shower to his cell and fell down approximately ten stairs.
Texas Department of Criminal Justice (“TDCJ”) policy requires that two officers
escort administrative segregation inmates from the shower to their cells, with
one holding the inmate’s arm. Only one TDCJ officer escorted Iruegas on this
occasion, however, and did not hold his arm. Iruegas suffered cuts and bruises
to his back, neck, shoulder, head, forearm, and leg.
      Although TDCJ regulations require officers to call the medical department
immediately in the event of an accident, officers ordered Iruegas to return to his
cell despite his request for medical treatment. Later that day, however, he

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received medical attention from Dr. Adel Nafrawi, consisting of X-rays and non-
prescription pain relievers. The X-rays revealed that Iruegas had not broken
any bones. Dr. Nafrawi did not clean his cuts.
       The next day, Iruegas saw Debora Caldwell, a phyisican’s assistant, who
told him that despite his bruises, there was nothing wrong with him and that
the pain would subside in time. Iruegas requested that Caldwell order an MRI,
but she refused. For the remainder of his time as an inmate, Iruegas repeatedly
asked TDCJ medical staff for an MRI, to no avail.1 Despite trying several
different non-prescription pain relievers, Iruegas testified that he remained in
pain and experienced difficulty lifting his arms over his head and bending or
squatting.
       Iruegas sought administrative relief and then filed a pro se, in forma
pauperis civil rights complaint in the Dallas Division of the Northern District of
Texas raising allegations that Defendants acted with deliberate indifference to
his health and safety, and to his serious medical needs.                      The case was
transferred to the Abilene Division, and then transferred again to the docket of
a magistrate judge with instructions to conduct a Spears hearing for screening
pursuant to 28 U.S.C. §§ 1915 and 1915A. Iruegas subsequently waived his
right to proceed before a district judge.
       The magistrate judge characterized Iruegas’s action as a § 1983 suit and
scheduled a Spears hearing. Prior to his Spears hearing, Iruegas retained
counsel. Iruegas’s counsel appeared on his behalf at the hearing, and although
neither Defendants nor their counsel appeared, an employee of the prison system
was present.      This employee offered no testimony and did not attempt to



       1
        After filing his complaint, but before it was transferred, Iruegas notified the district
court that he had been released from TDCJ custody. After the magistrate judge scheduled his
Spears hearing, Iruegas notified the court that he had been re-incarcerated for violating the
terms of his probation.

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introduce any evidence.           Iruegas testified, but offered no other evidence to
support his claims.
        The magistrate judge dismissed Iruegas’s claims with prejudice, finding
that he failed to state a cognizable constitutional claim for deliberate
indifference as to any Defendant. To the extent that Iruegas directed his claims
against Defendants in their official capacity, the magistrate judge also dismissed
them with prejudice, finding the claims barred by sovereign immunity.2 Iruegas
timely appealed.
                                      II. DISCUSSION
        We review de novo the magistrate judge’s dismissal of Iruegas’s in forma
pauperis complaint as frivolous under 28 U.S.C. § 1915A. Geiger v. Jowers, 404
F.3d 371, 373 (5th Cir. 2005). On appeal, Iruegas advances three arguments: (1)
Iruegas had retained counsel before his Spears hearing, and therefore the
magistrate judge should not have conducted it; (2) the magistrate judge did not
swear in witnesses, allow cross-examination, or identify and authenticate
documents at the Spears hearing; and (3) his testimony established a prima facie
case for his claims. Not one of these assertions has merit.
A.      Propriety of the Spears Hearing
        The district court instructed the magistrate judge to conduct a Spears
hearing to consider Iruegas’s complaint. The magistrate judge acknowledged
that 28 U.S.C § 1915(e)(2) instructs the court to dismiss any frivolous or
malicious in forma pauperis claims, while § 1915A mandates screening all
prisoner civil complaints that seek redress from an officer or employee of a
governmental entity. He thus found Iruegas’s civil rights action subject to both
provisions.




        2
            Iruegas does not appeal the magistrate judge’s dismissal on this ground.

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        On appeal, Iruegas admits that Spears hearings are designed to determine
whether in forma pauperis complaints should be dismissed as frivolous. See,
e.g., Moore v. Carwell, 168 F.3d 234, 235 (5th Cir. 1999) (citing Spears, 766 F.2d
179. Iruegas cites no authority for the argument that his retention of counsel
defeats the screening process necessitated by in forma pauperis complaints and
statutorily-required for complaints by prisoners against government officials.
See 28 U.S.C. §§ 1915(e)(2)(B) & 1915A. Having found none ourselves, we find
that his argument lacks merit.
        Likewise, Iruegas’s argument that the magistrate judge erred by not
swearing in witnesses, allowing cross-examination, or identifying and
authenticating exhibits entirely lacks merit. Defendants did not introduce a
single witness for cross-examination purposes, nor did they try to introduce a
single exhibit. Instead, the magistrate judge heard testimony from Iruegas, and
on the basis of his uncontested statement, found that Iruegas had failed to state
any cognizable constitutional claim for deliberate indifference. We find no error
in the way in which the magistrate judge conducted Iruegas’s Spears hearing.
B.      Prima Facie Deliberate Indifference Claims
        On appeal, Iruegas argues that his uncontested Spears hearing testimony
established a prima facie case for his claims.      Specifically, Iruegas alleges
deliberate indifference in violation of the Eighth Amendment because
Defendants: (1) negligently violated their own policy when escorting him from
the showers; (2) delayed seeking medical treatment after his fall; and (3)
continuously ignored his serious medical needs. The magistrate judge dismissed
these claims as frivolous, and we find that the dismissal was proper.
        Iruegas alleges that Defendants negligently violated TDCJ policy when
only one officer escorted him from the shower without holding his arm. To prove
deliberate indifference, we have held that, “[a]t a minimum, the plaintiff must
show that prison officials acted with a conscious or callous indifference,” and

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that “[m]ere negligence . . . [or] neglect” will not suffice. Fielder v. Bosshard, 590
F.2d 105, 107 (5th Cir. 1979).      Because nothing in Iruegas’s allegations or
testimony suggests that anything other than negligence on the part of
Defendants led to his fall, he has failed to state a cognizable constitutional claim
on this ground.
      Iruegas also alleges that Defendants negligently failed to seek medical
treatment for him immediately after his fall, in violation of TDCJ policy. We
have held that “delay in medical care can only constitute an Eighth Amendment
violation if there has been deliberate indifference, which results in substantial
harm.” Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993). Additionally,
“[d]eliberate indifference is more than mere negligence in failing to supply
medical treatment.” Gibbs v. Grimmette, 254 F.3d 545, 549 (5th Cir. 2001).
Because Iruegas has not alleged any additional harm based on the delay in his
treatment or anything other than negligence in Defendants’ violation of TDCJ’s
policy, we find that he has failed to state a cognizable constitutional claim on
this ground.
      Finally, Iruegas alleges that Defendants’ failure to clean out his cuts, order
an MRI, or provide him with more effective pain medication gives rise to a claim
of deliberate indifference. We have held that to show deliberate indifference to
serious medical needs, a plaintiff must demonstrate that a defendant “‘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. Tex. Dep’t of Crim. Justice, 239 F.3d 752,
756 (5th Cir. 2001) (quoting Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir.
1985)). Additionally, “[u]nsuccessful medical treatment does not give rise to a
§ 1983 cause of action. . . . Nor does [m]ere negligence, neglect or medical
malpractice.” Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991) (internal
citations and quotation marks omitted). Because Defendant’s failure to clean

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Iruegas’s cuts, order an MRI after X-rays revealed no broken bones, or prescribe
Iruegas stronger pain medication did not “‘unnecessar[ily] and wanton[ly]
inflict[] . . . pain repugnant to the conscience of mankind,’” we find that Iruegas
has failed to state a cognizable claim on this ground. Tamez v. Murphy, 589 F.3d
764, 770 (5th Cir. 2009) (quoting McCormick v. Stalder, 105 F.3d 1059, 1061 (5th
Cir. 1997)).
                              III. CONCLUSION
      Iruegas has failed to demonstrate any error in the fact that the magistrate
judge held a Spears hearing or in the way in which the magistrate judge
conducted it. Additionally, Iruegas has failed to state a cognizable deliberate
indifference claim that would support his § 1983 suit. We therefore affirm the
magistrate judge’s dismissal with prejudice of Iruegas’s claims.
      AFFIRMED.




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