     Case: 19-20316      Document: 00515389487         Page: 1    Date Filed: 04/21/2020




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

                                                                           FILED
                                                                        April 21, 2020
                                    No. 19-20316
                                                                       Lyle W. Cayce
                                  Summary Calendar                          Clerk


THERON OWENS,

                                                 Plaintiff-Appellant

v.

LORIE DAVIS; WARDEN BREWER; DOCTOR BETTY WILLIAMS;
ONUIGB, Physician’s Assistant; UTMB AT GALVESTON,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:18-CV-3068


Before HIGGINBOTHAM, HO, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
       Theron Owens, Texas prisoner # 1734133, appeals the district court’s
dismissal of his 42 U.S.C. § 1983 complaint as frivolous under 28 U.S.C.
§ 1915(e)(2)(B)(i).     We review the district court’s decision for abuse of
discretion. See Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005). For the
reasons below, we affirm.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-20316

      As to Owens’s claim that the defendants unconstitutionally denied him
access to the courts, Owens fails to show how he was prejudiced by any alleged
acts. See Lewis v. Casey, 518 U.S. 343, 351-53 (1996). Notably, Owens does
not identify any particular nonfrivolous legal claim that he was pursuing and
how the alleged actions of the defendants hindered his pursuit of any such
claim. See Christopher v. Harbury, 536 U.S. 403, 415 (2002). Accordingly,
Owens has not shown that the district court abused its discretion in dismissing
his access-to-the-courts claim as frivolous.
      Regarding his claim that the defendants were deliberately indifferent to
his serious medical needs, Owens contends that the defendants failed to treat
properly his back pain when they, among other things, denied his request for
an MRI. Owens’s own admissions regarding the treatment that he received
with respect to his back pain and the grievances contained in the record defeat
any claim that the defendants acted with a wanton disregard for Owens’s
serious medical needs. To the contrary, the record demonstrates that Owens
has been seen regularly by medical personnel; was prescribed pain medication
and physical therapy; and was provided with a special disability chow pass,
walking cane, and back brace. See Banuelos v. McFarland, 41 F.3d 232, 235
(5th Cir. 1995). Inasmuch as Owens complains about a misdiagnosis of his
back condition, his complaint is, at best, one of mistake, negligence or
malpractice, not deliberate indifference, particularly in the absence of any
allegation that his condition required immediate care or subjected him to any
wanton infliction of pain. See Farmer v. Brennan, 511 U.S. 825, 839 (1994);
Easter v. Powell, 467 F.3d 459, 463 (5th Cir. 2006); Gobert v. Caldwell, 463
F.3d 339, 346 (5th Cir. 2006).
      The true nature of Owens’s complaint is a challenge to the medical
judgment exercised by prison medical staff in determining the appropriate



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                                   No. 19-20316

course of treatment for his back pain, which complaint does not give rise to a
constitutional violation. See Gobert, 463 F.3d at 346. To the extent that he
specifically complains that he has been denied an MRI or the optimum pain
reliever for his back condition, his complaint falls short of establishing any
constitutional violation. See id. at 351-52. Accordingly, Owens has not shown
that the district court abused its discretion in dismissing his deliberate-
indifference claim as frivolous.
      Because Owens’s case does not present extraordinary circumstances, we
deny his motion for the appointment of counsel. See Cooper v. Sheriff, Lubbock
Cty., Tex., 929 F.2d 1078, 1084 (5th Cir. 1991).
      AFFIRMED; MOTION FOR APPOINTMENT OF COUNSEL DENIED;
MOTION FOR STAY OF APPEAL DENIED.




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