     Case: 12-30677       Document: 00512089250         Page: 1     Date Filed: 12/19/2012




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

                                                                            FILED
                                                                        December 19, 2012
                                     No. 12-30677
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

MARTIN PAUL BROUSSARD,

                                                  Plaintiff - Appellant

v.

ASHLEY NELSON; DAVID VIATOR,

                                                  Defendants - Appellees


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 6:11-CV-1923


Before BARKSDALE, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM:*
       Proceeding pro se and in forma pauperis, Martin Paul Broussard,
Louisiana prisoner # 114817, appeals the district court’s dismissing his 42
U.S.C. § 1983 complaint, pursuant to 28 U.S.C. § 1915(e)(2)(B), against Ashley
Nelson and Warden David Viator (Defendants) for failure to state a claim upon
which relief may be granted. In his complaint, Broussard alleged, inter alia,
that Defendants subjected him to cruel and unusual punishment in violation of



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                   No. 12-30677

the Eighth Amendment while he was incarcerated at the South Louisiana
Correctional Center in Basile, Louisiana.
      Broussard contends Nelson, a correctional center nurse, failed to: provide
prescribed medication despite his repeated requests; timely respond to his
emergency call; and render proper treatment once she did respond. He abandons
his claims against Warden Viator by not raising them. E.g., Yohey v. Collins, 985
F.2d 222, 224-25 (5th Cir. 1993); Brinkmann v. Dallas County Deputy Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987).
      District courts must dismiss prisoner complaints that fail to state a claim
upon which relief may be granted. 28 U.S.C. §§ 1915A(b)(1), 1915(e)(2)(B). Such
dismissals are reviewed de novo. Hart v. Hairston, 343 F.3d 762, 763 (5th Cir.
2003). “To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and
citation omitted). The plaintiff must provide more than “an unadorned, the
defendant-unlawfully-harmed-me accusation.” Id.
      A prison official acts with deliberate indifference if she “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 a substantial risk
of serious harm exists, and [she] must also draw the inference”. Farmer v.
Brennan, 511 U.S. 825, 837 (1994). To show deliberate indifference, a prisoner
must show prison officials “refused to treat him, ignored his complaints, . . . 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).
      Broussard’s complaint fails to show Nelson acted with deliberate
indifference. The contention that Nelson twice told Broussard the prison had
run out of his prescribed cough medication is insufficient to show a “wanton
disregard” for his medical needs, id., and the assertion that Nelson lied to

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                                   No. 12-30677

Broussard about that medication’s availability is a “conclusory allegation[] . . .
insufficient to [state] a constitutional [claim]”. Koch v. Puckett, 907 F.2d 524, 530
(5th Cir. 1990).
      Broussard’s bare assertion that Nelson delayed in responding to an
emergency call likewise fails to make the requisite showing of deliberate
indifference. E.g., Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993). Nor
does it “clearly evince” a “wanton disregard” for his medical needs. Gobert, 463
F.3d at 346. Broussard characterizes Nelson’s examining him after she arrived
as “fake” and “lame”, but his dissatisfaction with that examination is an
insufficient basis for an Eighth Amendment claim. E.g., Varnado v. Lynaugh,
920 F.2d 320, 321 (5th Cir. 1991). Even if further treatment was advisable,
Broussard cannot show Nelson drew the inference that a substantial risk of
serious harm existed if it was not provided. Farmer, 511 U.S. at 837. “[A]n
official’s failure to alleviate a significant risk that [she] should have perceived
but did not, while no cause for commendation, cannot . . . be condemned as the
infliction of punishment.” Id. at 838.
      The dismissal of a complaint under 28 U.S.C. § 1915(b)(1) counts as a
“strike” for purposes of § 1915(g). Adepegba v. Hammons, 103 F.3d 383, 387 (5th
Cir. 1996). Broussard is warned that an accumulation of three strikes will
preclude his proceeding in forma pauperis in any civil action or appeal filed
while he is incarcerated or detained in any facility, unless he is under imminent
danger of serious physical injury. 28 U.S.C. § 1915(g).
      AFFIRMED; SANCTION WARNING ISSUED.




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