     Case: 09-40629     Document: 00511139577          Page: 1    Date Filed: 06/11/2010




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

                                                 FILED
                                                                            June 11, 2010
                                     No. 09-40629
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

NOEL S. HARRIS,

                                                   Plaintiff-Appellant,

v.

R N BIGS; Sheriff J B SMITH; SMITH COUNTY MEDICAL CARE SERVICE
SYSTEM,

                                                   Defendants-Appellees.


                    Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 6:08-CV-471


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
        Noel S. Harris, Texas prisoner # 1451879, has appealed the dismissal of
his civil rights complaint as frivolous pursuant to 28 U.S.C. § 1915A(b)(1).
Harris consented to entry of judgment by the magistrate judge. Harris contends
that the magistrate judge erred in dismissing the complaint as frivolous, in
denying his pending motions summarily, and in failing to compel responses to
his discovery requests.


       *
         Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-40629

      Under § 1915A, a district court is required to “review, before docketing, if
feasible or, in any event, as soon as practicable after docketing, a complaint in
a civil action in which a prisoner seeks redress from a governmental entity or
officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). The court
should dismiss such a complaint if it is “frivolous, malicious, or fails to state a
claim upon which relief may be granted.” § 1915A(b)(1).           “A complaint is
frivolous if it lacks an arguable basis in law or fact, such as when a prisoner
alleges the violation of a legal interest that does not exist.” Martin v. Scott, 156
F.3d 578, 580 (5th Cir. 1998) (citation omitted). We review § 1915A dismissals
as frivolous for an abuse of discretion. Id. “A district court abuses its discretion
if it bases its decision on an erroneous view of the law or on a clearly erroneous
assessment of the evidence.” Esmark Apparel, Inc. v. James, 10 F.3d 1156, 1163
(5th Cir. 1994).
      Harris contends that Smith County Jail Intake Registered Nurse Bigs
(true name Patricia Ann Jessie) acted with deliberate indifference to his need for
medication to treat his eye, on which he had recently had emergency surgery.
Jessie testified at a hearing convened in accordance with Spears v. McCotter, 766
F.2d 179 (5th Cir. 1985), abrogated on other grounds, Neitzke v. Williams, 490
U.S. 319 (1989), that she contacted the office of Harris’s treating physician and
was told by a nurse not to give Harris medication.
      Prison officials violate the constitutional proscription against cruel and
unusual punishment when they demonstrate deliberate indifference to a
prisoner’s serious medical needs, constituting an unnecessary and wanton
infliction of pain.    See Wilson v. Seiter, 501 U.S. 294, 302-03 (1991).
Unsuccessful medical treatment, acts of negligence, neglect, or medical
malpractice are insufficient to give rise to a 42 U.S.C. § 1983 cause of action.
Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991).                A prisoner’s
disagreement with his medical treatment is not actionable under § 1983 absent



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exceptional circumstances. Id.; see Jackson v. Cain, 864 F.2d 1235, 1242 (5th
Cir. 1989).
      Harris contends, correctly, that Jessie was advised of his serious medical
condition and that he received no additional treatment for that condition while
he was incarcerated at the Smith County Jail. The record reflects also, however,
that Harris did not request any additional treatment while he was at the Smith
County Jail, and that Jessie followed jail policy in contacting the treating
physician’s office and in following instructions to provide no further treatment.
Even assuming arguendo that Jessie was negligent, such negligence does not
constitute a constitutional violation. See Varnado, 920 F.2d at 321. Harris has
not shown that the magistrate judge abused her discretion in dismissing the
complaint against Jessie as frivolous. See Martin, 156 F.3d at 580.
      Harris also has not shown that the magistrate judge abused her discretion
in allowing Jessie to give hearsay testimony. See Wilson v. Barrientos, 926 F.2d
480, 482-83 (5th Cir. 1991) (“Within the context of the Spears hearing the trial
judge has the discretion to decide the best way to elicit the complainant’s
articulation of his grievance and the basis for making any credibility assessment
needed.” (footnote omitted)). In addition, because this case did not present
exceptional circumstances, the magistrate judge did not abuse her discretion in
denying Harris’s motions for appointment of counsel. See Freeze v. Griffith, 849
F.2d 172, 175 (5th Cir. 1988) (“A civil rights complainant has no right to the
automatic appointment of counsel unless the case presents exceptional
circumstances.” (citation omitted)).
      Harris does not contend that the magistrate judge erred in dismissing his
claims against Sheriff J.B. Smith and the Smith County Jail Infirmary’s Medical
Care Services System. Nor does he contend that the magistrate judge erred in
refusing to permit him to amend his complaint to assert a claim against his
treating physician. Because these issues are not briefed, they are waived.
Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.

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1987). Harris’s motion in this court for appointment of counsel is DENIED, see
Freeze, 849 F.2d at 175, and the judgment is AFFIRMED.
      The district court’s dismissal of Harris’s § 1983 complaint as frivolous
under 28 U.S.C. § 1915A(b)(1) counts as a strike for purposes of 28 U.S.C.
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).
Harris has at least one prior strike related to the dismissal of another civil rights
action. See Harris v. Herring, No. 2:08-CV-0215 (N.D. Tex. Dec. 12, 2008)
(unpublished). We CAUTION Harris that, once he accumulates three strikes,
he will not be permitted to proceed 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. See 28 U.S.C. § 1915(g).




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