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

                                                 FILED
                                                                          October 22, 2009

                                     No. 09-10404                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



JOHN D. FAILS, also known as John Daniel Fails, Jr., also known as John D
Fails, Jr.,

                                                   Plaintiff - Appellant
v.

DENISE DESHIELDS, Medical Director, Texas Tech University Health
Science Center Individually and in Their Official Capacity; BRAD
LIVINGSTON, Executive Director, Texas Department of Criminal Justice,
Individually and in Their Official Capacity; RISSIE OWENS, Chairperson,
Texas Board of Pardons and Paroles Individually and in Their Official
Capacity; GERALD DAVIS, Assistant Warden, Individually and in Their
Official Capacity,

                                                   Defendants - Appellees




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 2:08-CV-88


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-10404

      John D. Fails, pro se, appeals the district court’s dismissal of his § 1983
complaint alleging deliberate indifference to serious medical needs. For the
following reasons, we AFFIRM.
                       FACTS AND PROCEEDINGS
      Fails, proceeding in forma pauperis, brought suit after he suffered several
knee injuries while incarcerated at a Texas Department of Criminal Justice
(“TDCJ”) prison in Amarillo, Texas.        The original complaint named as
defendants Denise DeShields, the medical director of the Texas Tech University
Health Science Center; Brad Livingston, the executive director of the TDCJ; and
Rissie Owens, the chairwoman of the Texas Board of Pardons and Paroles. The
amended complaint added Gerald Davis, an assistant warden at the Amarillo
prison, as a defendant.    Through 42 U.S.C. § 1983, Fails alleges that the
defendants violated the Eighth Amendment by displaying deliberate indifference
to his serious medical needs.
      Fails was unsatisfied with the medical care he received after he slipped
while getting out of the shower and injured his left knee. According to the
account in the amended complaint and the grievances attached to the original
complaint, which include the prison’s response to his grievances, Fails visited
the unit physician the morning after his injury. The physician told Fails, who
is diabetic, that his knee was too swollen to be examined effectively and that he
should return for a follow-up appointment. The doctor also provided him with
crutches and ibuprofen, both of which Fails refused—the crutches because he
claimed they were too short, and the medicine because he is opposed to taking
most medications. Fails was seen a second time several days after scheduling
a follow-up appointment. The doctor ordered x-rays of Fails’s knee and, after a
subsequent evaluation, a knee brace.       At a later evaluation, Fails did not
complain about his knee, but was prescribed arch supports for his feet.



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       Subsequently, Fails had several accidents in which his knee “gave out.”
The medical department ordered two knee x-rays, one pelvic x-ray, and an MRI.
The MRI results showed that Fails had previously undergone knee surgery for
a pre-existing injury, and that his knee had since demonstrated “minor
degenerative changes.” The treating official told Fails that his knee problem
would stabilize over time and prescribed crutches. In 2007, Fails injured his
right knee. An orthopedic specialist told him that surgery would not cure his
knee problems. Fails exhausted his administrative remedies by filing the proper
grievances, which he attached to his complaint.
       In October 2007, Fails sent a settlement offer to DeShields. Fails wrote
similar letters to Livingston and Owens in March 2008. The letters are the only
things that connect DeShields, Livingston, and Owens to Fails’s allegations.1
       The magistrate judge’s report and recommendation suggested dismissing
Fails’s suit without prejudice for failure to state a claim and with prejudice as
frivolous. The magistrate judge reasoned that the prison officials’s conduct, as
detailed in his complaints and the attached grievances, did not amount to
deliberate indifference and that the suit was frivolous. Over Fails’s objection,
the district court adopted the report and recommendation. Noting that Fails did
not name any of his medical caregivers as defendants, it dismissed the suit.
Fails appeals.
                              STANDARD OF REVIEW
       Civil rights complaints filed by prisoners should be dismissed if they are
“frivolous, malicious, or fail[] to state a claim upon which relief may be granted.”


       1
         The amended complaint contains a conclusory allegation that Gerald Davis failed to
ensure that Fails’s living conditions did not cause further damage to his knee. For the reasons
stated below, Fails failed to plead a cognizable Eighth Amendment violation against any
named defendant, including Davis. The district court correctly dismissed the suit against
Davis as frivolous and for failure to state a claim; we note, however, that Fails also neglected
to exhaust his administrative remedies as to any claim against Davis related to his knee
injuries. 42 U.S.C. § 1997e(a).

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28 U.S.C. § 1915A(b)(1). This court reviews a district court’s § 1915A dismissal
de novo. Hutchins v. McDaniels, 512 F.3d 193, 195 (5th Cir. 2007) (citation
omitted). District courts may also dismiss, as frivolous, complaints of prisoners
proceeding in forma pauperis when they lack an arguable basis in law or fact.
28 U.S.C. § 1915(e)(2)(B)(i); Hutchins, 512 F.3d at 195 (citation omitted). Such
dismissals are reviewed for abuse of discretion. Geiger v. Jowers, 404 F.3d 371,
373 (5th Cir. 2005) (citation omitted). Because the magistrate judge referred to
both § 1915A and § 1915(e) when it recommended dismissing the suit as
frivolous, the court will review the issues raised on appeal de novo. Velasquez
v. Woods, 329 F.3d 420, 421 (5th Cir. 2003).
      To state a claim upon which relief may be granted, “the plaintiff must
plead enough facts to state a claim to relief that is plausible on its face.” See In
re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (internal
quotations and citation omitted).      “[A] plaintiff’s obligation to provide the
‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will
not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations
omitted). In effect, “[f]actual allegations must be enough to raise a right to relief
above the speculative level.” Id.; see also Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-
50 (2009).
                                  DISCUSSION
      A plaintiff must meet an “extremely high” standard to show deliberate
indifference to a serious medical need under the Eighth Amendment. Gobert v.
Caldwell, 463 F.3d 339, 346 (5th Cir. 2006) (quotations omitted). For a prison
official to be liable for deliberate indifference, the plaintiff must show that “the
official knows of and disregards an excessive risk to inmate health or safety; the
official must both be aware of facts from which the inference could be drawn that



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a substantial risk of serious harm exists, and he must also draw the inference.”
Farmer v. Brennan, 511 U.S. 825, 837 (1994).
      Deliberate indifference is especially hard to show when the inmate was
provided with ongoing medical treatment. “Unsuccessful medical treatment,
acts of negligence, or medical malpractice do not constitute deliberate
indifference, nor does a prisoner’s disagreement with his medical treatment,
absent exceptional circumstances.” Gobert, 463 F.3d at 346 (citations omitted).
Complaints that more treatment should have been ordered, without more, are
insufficient to show deliberate indifference: “the decision whether to provide
additional treatment is a classic example of a matter for medical judgment.”
Domino v. Texas Dep’t of Crim. Justice, 239 F.3d 752, 756 (5th Cir. 2001)
(internal quotation omitted).
      From the face of Fails’s complaint and amended complaint, it is clear that
he was seen when he requested treatment and that the doctors and physician’s
assistants who saw him attempted to provide several remedies for his knee
problems. At no time were they deliberately indifferent to his medical needs.
They provided him with knee braces, performed an MRI, and offered him
painkillers, among other attempted remedies, for a pre-existing knee condition
that was aggravated by a series of accidents. Fails’s dissatisfaction with their
efforts does not suffice to create a constitutional violation.
      Fails did not allege 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, 239 F.3d at 756 (internal quotation omitted). Nor did he allege
any act that evinces “obduracy and wantonness,” Bradley v. Puckett, 157 F.3d
1022, 1025 (5th Cir. 1998) (quotation omitted), or that rises above simple
negligence, see Lawson v. Dallas County, 286 F.3d 257, 262-63 (5th Cir. 2002)
(“Deliberate indifference cannot be inferred from a prison official’s mere failure

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to act reasonably, i.e., it cannot be inferred from negligence alone.” (citation
omitted)). Additionally, it is clear that the defendants Fails named took no part
in his medical treatment; even if a constitutional violation had occurred, they
could not have been liable for it under a respondeat superior theory. See, e.g.,
Bush v. Viterna, 795 F.2d 1203, 1206 (5th Cir. 1986) (citing Monell v. Dep’t of
Soc. Servs., 436 U.S. 658, 690-95 (1978)).
      On these facts, the district court properly dismissed without prejudice
Fails’s complaint pursuant to 28 U.S.C. § 1915A for failure to state a claim upon
which relief can be granted. Its dismissal with prejudice for frivolousness was
also correct. A prisoner’s complaint is frivolous if it lacks an arguable basis in
law or fact. See Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999). Fails’s case
did not falter solely because he named the wrong parties. The facts as recounted
in the complaint and its attached materials, as well as the amended complaint
the court allowed Fails to file, could not support liability for an Eighth
Amendment violation.      The district court properly dismissed the case as
frivolous.
                                CONCLUSION
      The district court’s dismissal of Fails’s complaint is AFFIRMED.




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