     Case: 09-41220     Document: 00511243791          Page: 1    Date Filed: 09/24/2010




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

                                                 FILED
                                                                        September 24, 2010
                                     No. 09-41220
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

KENNETH IVORY GANTHER,

                                                   Plaintiff - Appellant

v.

FRED DALTON, Captain; J W MOSSBARGER, Unit Warden; J.R. GUYTON,
Assistant Regional Director Region II,

                                                   Defendants - Appellees


                    Appeal from the United States District Court
                         for the Southern District of Texas
                               USDC No. 3:08-CV-220


Before BARKSDALE, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
        Kenneth Ivory Ganther, Texas inmate #1266740, appeals, pro se, the
dismissal of his 42 U.S.C. § 1983 action for failure to state a claim for which
relief could be granted, as well as the denial of his motions for judgment as a
matter of law and for summary judgment.                  He contends defendants were
deliberately indifferent to his medical needs in violation of the Eighth




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-41220      Document: 00511243791 Page: 2            Date Filed: 09/24/2010
                                   No. 09-41220

Amendment because they refused to provide him with a new pair of high-top
work boots during the period of 10 June 2008 through 16 January 2009.
       Although Ganther had a medical pass to have his prison-issued boots
replaced with new ones, his request was denied by defendants, pursuant to
prison policy that boots be issued only to field workers. Ganther’s assignment
was instead in the kitchen.
       Our court reviews de novo denials of motions for judgment as a matter of
law, and for summary judgment, and dismissals for failure to state a claim. E.g.,
Arsement v. Spinnaker Exploration Co., 400 F.3d 238, 248 (5th Cir. 2005);
Gutierrez v. City of San Antonio, 139 F.3d 441, 444 (5th Cir. 1998); Black v.
Warren, 134 F.3d 732, 733-34 (5th Cir. 1998).
       The Eighth Amendment protects prisoners from “the wanton and
unnecessary infliction” of injury that results in “pain without any penological
purpose” or an “unquestioned and serious deprivation of basic human needs”.
Rhodes v. Chapman, 452 U.S. 337, 347 (1981) (citing Estelle v. Gamble, 429 U.S.
97, 103 (1976); Hutto v. Finney, 437 U.S. 678 (1978)). A violation of the Eighth
Amendment occurs only when:             there is a deprivation that is “objectively,
‘sufficiently serious’”, resulting “in the denial of ‘the minimal civilized measure
of life’s necessities,’” . . . and the “prison official . . . [has] a ‘sufficiently culpable
state of mind’”. Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting Wilson
v. Seiter, 501 U.S. 294, 297-98 (1991); Rhodes, 452 U.S. at 347). In Farmer, the
Court held that a prison official acts with deliberate indifference to inmates’
health “only if he knows that [they] face a substantial risk of serious harm and
disregards that risk by failing to take reasonable measures to abate it”. Id. at
847. The prisoner must “submit evidence 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”. Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006)
(internal quotations omitted).

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   Case: 09-41220    Document: 00511243791 Page: 3        Date Filed: 09/24/2010
                                 No. 09-41220

      Given the prison’s policy of issuing boots only to field workers and
Ganther’s assignment to the kitchen, defendants’ denial of boots was not conduct
that was “‘causeless[], without restraint, and in reckless disregard’” of Ganther’s
health such that it could be termed wanton in violation of the Eighth
Amendment. Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985) (quoting 30
A MERICAN AND E NGLISH E NCYCLOPEDIA OF L AW 2-4 (2d ed. 1905) (footnotes
omitted)). For purposes of receiving the relief requested in this appeal, Ganther
fails to show that defendants acted with the knowledge that denial of boots
would pose to him a substantial risk of serious harm. The denial of boots, based
upon prison policy, was at most negligence, which is not actionable. See Gobert,
463 F.3d at 346.
      Because reasonable jurors could have arrived at a verdict contrary to
Ganther’s position and because there was a genuine issue of material fact, the
district court did not err by dismissing Ganther’s motions for judgment as a
matter of law and for summary judgment. See Arsement, 400 F.3d at 248-49;
Gutierrez, 139 F.3d at 444. Additionally, Ganther’s complaint failed to allege
facts sufficient to support a conclusion of deliberate indifference. Thus, he fails
to show that the district court erred by dismissing his § 1983 action for failure
to state a claim. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007).
      AFFIRMED.




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