     Case: 16-30985      Document: 00514174372         Page: 1    Date Filed: 09/28/2017




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

                                    No. 16-30985                                 FILED
                                  Summary Calendar                      September 28, 2017
                                                                            Lyle W. Cayce
                                                                                 Clerk
KENNETH ROBERTS,

                                                 Plaintiff-Appellant

v.

RIVER CORRECTIONAL CENTER; KENNETH HEDRICK,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:16-CV-512


Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM: *
       Kenneth Roberts, Louisiana prisoner # 386858, filed a § 1983 complaint
against the River Correctional Center (RCC), Sheriff Kenneth Hedrick, and an
unnamed doctor and unnamed nurse employed at RCC. He alleged that the
defendants violated his Eighth Amendment right to be free from cruel and
unusual punishment by being deliberately indifferent to his serious medical
needs. The district court, sua sponte, dismissed the complaint for failure to


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-30985

state a claim upon which relief may be granted under 28 U.S.C. §§ 1915(e)(2)(b)
and 1915A. We review such a dismissal de novo. Velasquez v. Woods, 329 F.3d
420, 421 (5th Cir. 2003).
      In determining whether a complaint fails to state a claim, we apply the
same standard of review that is applicable to dismissals made under Rule
12(b)(6) of the Federal Rules of Civil Procedure and “will uphold a dismissal if,
taking the plaintiff's allegations as true, it appears that no relief could be
granted based on the plaintiff’s alleged facts.” Samford v. Dretke, 562 F.3d
674, 678 (5th Cir. 2009) (internal quotation marks and citation omitted). “A
prison official violates the Eighth Amendment’s prohibition against cruel and
unusual punishment when his conduct demonstrates deliberate indifference to
a prisoner’s serious medical needs.” Sama v. Hannigan, 669 F.3d 585, 590 (5th
Cir. 2012) (internal quotation marks and citation omitted); see Farmer v.
Brennan, 511 U.S. 825, 847 (1994); Reeves v. Collins, 27 F.3d 174, 176 (5th Cir.
1994) (applying Farmer to medical claims).        A prisoner cannot establish
deliberate indifference based on acts of negligence or medical malpractice.
Stewart v. Murphy, 174 F.3d 530, 534 (5th Cir. 1999).
      Since the inception of this action, Roberts has characterized the action
as one for medical negligence. On appeal, Roberts has not shown that he
alleged that the RCC medical staff knew he faced a substantial risk of serious
harm and disregarded that risk. See Gentilello v. Rege, 627 F.3d 540, 544 (5th
Cir. 2010). To the extent that Roberts suggests that the RCC nurse was
retaliating against him for a prior grievance, has provided no facts to support
the inference of retaliation by the RCC nurse. See Woods v. Smith, 60 F.3d
1161, 1166 (5th Cir. 1995).
      On appeal Roberts continues to argue incorrectly that RCC and Sheriff
Hedrick are liable for the RCC medical staff’s alleged constitutional violations



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                                 No. 16-30985

solely because they were responsible for the employees’ actions. See Thompson
v. Upshur Cnty., 245 F.3d 447, 459 (5th Cir. 2001) (internal quotation marks
and citation omitted). Finally, Roberts argues that the district court erred by
dismissing his complaint without granting his request for discovery. This
contention is without merit. See Southwestern Bell Tel., LP v. City of Houston,
529 F.3d 257, 263 (5th Cir. 2008) (Rule 12(b)(6) case).
      For the foregoing reasons, Roberts has not shown that the district court
erred in determining that his complaint failed to state a claim upon which
relief could be granted.
      AFFIRMED.




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