                                  United States Court of Appeals,
                                           Fifth Circuit.


                                           No. 92–3052

                                        Summary Calendar.

                               Larry WALKER, Plaintiff–Appellee,

                                                  v.

                              R. Hilton BUTLER, et al., Defendants,

                      James Alexander McMurtry, Jr., Defendant–Appellant.

                                           Aug. 4, 1992.

Appeal from the United States District Court for the Middle District of Louisiana.

Before JOLLY, DAVIS, and SMITH, Circuit Judges.

       PER CURIAM:

       Plaintiff-appellee Larry Walker, an inmate of the Louisiana Department of Corrections at

Angola, Louisiana, filed this § 1983 civil rights suit against Sergeant James McMurtry, a former

corrections officer at the penitentiary. Walker alleged that McMurtry was deliberately indifferent to

his serious medical needs.



       The case was eventually assigned to a magistrate judge. After an evidentiary hearing, the

magistrate judge issued a report and recommendation that judgment be entered in Walker's favor.

The magistrate found that McMurtry was deliberately indifferent to Walker's medical needs because

McMurtry, without any medical training, determined that Walker's co mplaints of pain were not

serious and ordered Walker to walk to the hospital rather than having medical assistance come to the

cafeteria where Walker was injured. The magistrate found that although the injury was not worsened

by the walking, Walker did suffer additional pain while walking and suggested an award of $500.00.

The magistrate then found that punitive damages were not appropriate because McMurtry did not

display a wanton disregard for Walker's rights.
          The district court adopted the report and recommendation of the magistrate and entered

judgment accordingly. McMurtry appeals.



          Walker was involved in a fight with another inmate in the cafeteria and Sergeant McMurtry

attempted to break up the fight. In doing so, McMurtry fell on Walker's leg. Walker complained that

his leg was hurt. McMurtry was ordered to take Walker to the prison hospital. Instead of calling

medical personnel to assist Walker in getting to the hospital, McMurtry made Walker walk to the

hospital.1



          Walker's right ankle was fractured in two places. It was a "closed fracture," meaning that the

skin was not broken.



          McMurtry argues that his conduct did not amount to deliberate indifference because he did

not know that Walker had broken his ankle and because he actually escorted Walker to the hospital.

The Eighth Amendment prohibits punishment that is unnecessary and wanton infliction of pain.

Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976). Deliberate

indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction

of pain and states a cause of action under 42 U.S.C. § 1983. Id.



          A prison guard is deliberately indifferent if he intentionally denies or delays access to medical

care. Id. Walker was not denied medical treatment and there is no proof that medical treatment was

delayed as a result of McMurtry's decision to make Walker walk to the hospital. Walker argues that

McMurtry exhibited deliberate indifference by forcing him to walk to the hospital, rather than calling

the medical personnel to the cafeteria.



          Deliberate indifference is a legal conclusion which must rest on facts evincing wanton actions

   1
       The hospital was between 150 and 440 yards away.
on the part of the defendant. Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir.1985). Wantonly

means having a reckless disregard for the rights of others. Id. We hold that the district court erred

in concluding that McMurtry acted with deliberate indifference. His decision to make Walker walk

to the hospital to be treated was not wanton and did not involve a reckless disregard of Walker's

rights. The district court even found that McMurtry did not display a wanton disregard for Walker's

rights.2 We therefore reverse the district court's judgment.3



       REVERSED.




   2
    The district court made this determination in concluding that McMurtry was not liable for
punitive damages. In doing so, however, the district court applied the wrong punitive damages
standard. Punitive damages may be awarded in § 1983 cases when the defendant's conduct is
shown to be motivated by ill will or intent, or when it involves reckless or callous indifference to
the constitutional rights of others. Thompkins v. Belt, 828 F.2d 298, 301–302 (5th Cir.1987).
   3
     Because we decide the case on the merits we do not reach McMurtry's claim that he is
entitled to immunity.
