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

                                                                 FILED
                                                              September 8, 2008
                               No. 07-11264
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk
STEVIE ANDRE ROBERSON

                                           Plaintiff-Appellant

v.

DHIRAJLAL PATEL, DR; F BAXTER, Medical Administrator; DENISE
DESHIELDS, Medical Director; TIMOTHY SIMMONS, Warden; KAREN
JONES, Correctional Officer

                                           Defendants-Appellees


                 Appeal from the United States District Court
                      for the Northern District of Texas
                            USDC No. 2:05-CV-286


Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
      Stevie Andre Roberson, Texas prisoner # 1222812, appeals the dismissal
of his 42 U.S.C. § 1983 action in which he alleged the defendants acted with
deliberate indifference to his serious medical needs.
      Roberson maintains the district court erred in denying his claim that Dr.
Patel acted with deliberate indifference in that he: delayed providing treatment
for Roberson’s broken toe; continued the same treatment despite Roberson’s


      *
      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should not be published and is not precedent except under the limited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. 07-11264

complaints of pain; and was not competent to treat Roberson’s medical problems.
Roberson has not shown the district court erred in denying his claims against
Dr. Patel.
      Roberson did not establish that his April 2005 sick call requests or
grievances provided Dr. Patel notice of his complaint of a broken toe. Dr. Patel
examined Roberson’s feet in May 2005, and found no swelling, no deformities,
some loss of range of motion, no pain or tenderness, no redness or warmth;
although Roberson complained of a knot on his toe, there was no indication he
complained of a broken toe at that appointment.
      Roberson first complained of a broken toe to Dr. Patel in an examination
on 23 June 2005. At that time, Dr. Patel observed no swelling, no deformity, no
redness or warmth, no tenderness, full range of motion at the metatarsal carpal
joint, no pain, and felt no mass; he ordered an X-ray of the toe. Thus, Roberson’s
medical records show Dr. Patel did not act with deliberate indifference to
Roberson’s serious medical needs. See Domino v. Tex. Dep’t of Criminal Justice,
239 F.3d 752, 756 (5th Cir. 2001).
      Roberson contends that Correctional Officer Jones acted with deliberate
indifference by failing to issue wider boots to Roberson, as ordered by Dr. Patel.
The medical records and grievances show that Dr. Patel did not issue a
prescription for wider boots, but rather referred Roberson to Officer Jones’ office
to have his feet measured. Roberson’s allegations indicate that, at most, Officer
Jones was negligent in measuring his feet and not providing wider boots. Acts
of negligence do not constitute deliberate indifference. See Domino, 239 F.3d at
756; see also Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006).
      Therefore, the judgment is AFFIRMED. Roberson’s motion for en banc
hearing is DENIED.




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