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

                                                 FILED
                                                                      November 30, 2009
                                    No. 08-40888
                                  Summary Calendar                   Charles R. Fulbruge III
                                                                             Clerk

RANDY CHAPMAN
                                          PlaintiffSAppellant
v.

FNU PACE, Hospital Administrator, Michael Unit; DR JACK THOMPSON,
Michael Unit; LINDA MCKNIGHT, R.N. Michael Unit; VIRGINIA
BUCHANAN, P.A., Michael Unit

                                          DefendantsSAppellees




                  Appeal from the United States District Court
                 for the Eastern District of Texas, Tyler Division
                             USDC No. 6:08-cv-00081



Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Randy Chapman, Texas prisoner # 582570, appeals the dismissal of his pro
se, in forma pauperis 42 U.S.C. § 1983 complaint alleging inadequate medical
care. After an evidentiary hearing, conducted in accordance with Spears v.
McCotter, 766 F.2d 179 (5th Cir. 1985), the district court dismissed Chapman’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not be published and is not precedent except under the limited circumstances set forth in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. 08-40888
complaint under 28 U.S.C. § 1915A(b)(1) as frivolous and for failure to state a
claim upon which relief may be granted. We review the district court’s sua
sponte dismissal de novo, Ruiz v. United States, 160 F.3d 273, 274–75 (5th Cir.
1998), and affirm.
      Chapman suffered injuries while working on a ladder that fell over.
Chapman landed on the ladder, breaking his left forearm and left leg. At the
infirmary, Nurse Linda McKnight attended Chapman’s injuries.             Nurse
McKnight provided Chapman with an ice pack, crutches, and acetaminophen
and scheduled Chapman to see a doctor the following day. Chapman testified
at his Spears hearing that Nurse McKnight initially thought that he required
hospitalization, but that she changed her mind after she was informed that there
were too few security guards on duty to provide transport. There is nothing in
the medical record to indicate that hospitalization was considered.
      Dr. Jack Thompson treated Chapman the next day. Medical records show
that Dr. Thompson noted swelling and soreness but no obvious fractures. X-rays
taken the following day revealed fractures of the left arm and left leg. Dr.
Thompson placed casts on the broken left arm and left leg and issued an
expedited referral to an orthopedic specialist.   Ms. Pace, the medical unit
administrator, cancelled Chapman’s scheduled orthopedic appointment because
of a unit lockdown.   Another set of X-rays, performed after the casts were
removed, revealed that Chapman’s forearm had not healed properly. Chapman
finally saw an orthopedic specialist approximately three months after his injury
and he elected to have surgery to break and re-set the misaligned bone.
Chapman continues to suffer limited functioning of his left arm.
      Medical records show that restrictions were placed on Chapman’s work
assignments shortly after his injuries. While he awaited surgery, however,
Physicians Assistant (“P.A.”) Virginia Buchanan made an entry in Chapman’s
medical records that appeared to remove the medical restrictions.       A note


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accompanied the entry, indicating that Chapman should send a sick call request
to the medical unit if any problems arose on a work assignment. Chapman
subsequently re-injured his arm while working in the laundry room.
      Chapman complained that (1) Nurse McKnight and Dr. Thompson failed
to send him to the hospital after his injury, (2) Ms. Pace cancelled his orthopedic
appointment, and (3) P.A. Buchanan lifted his medical restrictions. He sought
damages for these alleged Eighth Amendment violations.
      To succeed in this § 1983 action, Chapman must establish deliberate
indifference to his serious medical condition, “an extremely high standard to
meet.” Domino v. Tex. Dep’t of Criminal Justice, 239 F.3d 752, 765 (2001); see
also Farmer v. Brennan, 511 U.S. 825, 835 (1994) (“[A] prison official cannot be
found liable under the Eight Amendment . . . unless the official knows of and
disregards an excessive risk to inmate health or safety . . . .”). An incorrect
medical diagnosis is not sufficient to establish a claim. Domino, 239 F.3d at 765.
Also, disagreement with a course of medical treatment will not suffice. See
Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir. 1997); Varnado v. Lynaugh, 920
F.2d 320, 321 (5th Cir. 1991).     To survive dismissal, Chapman must come
forward with a triable issue of fact that 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.” Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985).
      Medical records reviewed during the Spears hearing and, indeed,
Chapman’s own testimony, establish that prison medical officials were attentive
to Chapman’s medical needs. Both Nurse McKnight and Dr. Thompson treated
Chapman’s injuries and treatment continued well after his injuries. Chapman’s
disagreement with the treatment that he received does not establish a claim
under § 1983 upon which relief may be granted. See Estelle v. Gamble, 429 U.S.
97, 99–101 (1976) (prisoner’s § 1983 suit for alleged denial of medical treatment


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dismissed for failure to state a claim, despite evidence of minor medical response
in the face of repeated prisoner complaints); Domino, 239 F.3d at 753–54 (prison
psychiatrist not deliberately indifferent for failing to predict prisoner’s suicide
after a five minute interview with prisoner); Johnson, 759 F.2d at 1237
(prisoner’s suit dismissed upon state’s showing of continuing medical treatment);
see also Carrothers v. Kelly, 312 F. App’x 600, 602–3 (5th Cir. 2009)
(unpublished) (“The evidence supports the conclusion that Dr. Bearry did not
follow through with his plan to refer Carrothers to either an orthopedist or a
neurosurgeon. . . . At best, the evidence indicates that Dr. Bearry’s failure was
the result of negligence, and acts of negligence are not cognizable under
§ 1983.”). At most, Chapman’s allegations against the defendants amounts to
negligence. However, claimed negligence is not cognizable under § 1983, Daniels
v. Williams, 474 U.S. 327, 329–30 (1986), therefore Chapman does not plead a
viable § 1983 claim. See Varnado, 920 F.2d at 321.
      The judgment is AFFIRMED.




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