                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS           July 13, 2004

                       FOR THE FIFTH CIRCUIT             Charles R. Fulbruge III
                                                                 Clerk


                           No. 03-41200


     RANDALL GUINN HASTY

                                     Plaintiff - Appellant

     v.

     GARY L JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
     JUSTICE, INSTITUTIONAL DIVISION; ANANDA BABBILI, Physician
     Assistant, Texas Department of Criminal Justice; WILBUR
     DIXON, Physician Assistant, Texas Department of Criminal
     Justice-Institutional Division; LANNETTE LINTHIEUM, Division
     Director for Health Services; MONTE SMITH, M.D., Northern
     Regional Medical Director; DOUGLAS KIDD, LVN, Gurney Unit;
     SANDRA EMSOFF

                                     Defendants - Appellees

_________________________________________________________________

           Appeal from the United States District Court
             for the Eastern District of Texas, Tyler
                          No. 6:03-CV-57
_________________________________________________________________

Before KING, Chief Judge, and BARKSDALE and PICKERING, Circuit
Judges.

PER CURIAM:*

     Randall Guinn Hasty, a Texas prisoner, appeals the district

court’s dismissal of his 42 U.S.C. § 1983 suit.   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that this opinion should not be published and is not precedent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.

                                 1
     Hasty suffers from gastroesophageal reflux disease, for

which (he says) the proper treatment is the prescription

medication Prevacid.   Instead of providing him Prevacid, however,

Hasty alleges that prison medical personnel repeatedly prescribed

either nothing or less expensive--and, in Hasty’s view, less

efficacious--alternative drugs, e.g., antacids or Zantac.    He

maintains that the prison staff dispensed Zantac instead of

Prevacid solely because Zantac was cheaper.   Approximately one

year after Hasty entered the Texas prison system, a specialist at

John Sealy Hospital in Galveston diagnosed Hasty with a “grade 3”

ulcer.   Hasty then was prescribed and began receiving Prevacid in

its generic form, lansoprazole.   Hasty contends that the failure

of the prison medical staff to prescribe Prevacid earlier caused

him to develop the ulcer.   In addition, he avers that, before

receiving lansoprazole, he endured pain and vomited blood.

     Seeking damages for the delay in prescribing Prevacid, Hasty

filed a pro se complaint against several medical professionals at

the Gurney Unit of the Texas Department of Criminal Justice,

along with other officials in the Texas prison system.    The

district court referred Hasty’s suit to a magistrate judge, and

Hasty later consented to having the magistrate judge conduct all

proceedings in his case.    See 28 U.S.C. § 636(c).   The magistrate

judge granted Hasty’s motion to proceed in forma pauperis,

withheld service of process on the defendants, and stayed

discovery.   As part of the judicial screening process required by

                                  2
28 U.S.C. § 1915A(a), the magistrate judge held an evidentiary

hearing in accordance with Spears v. McCotter, 766 F.2d 179 (5th

Cir. 1985).

     The magistrate judge subsequently determined that Hasty had

failed to state a claim for which relief could be granted and

that his suit was frivolous.   She relied on two alternative

holdings.   First, she concluded that Hasty had failed to exhaust

his administrative remedies, as required by 42 U.S.C. § 1997e(a).

Although Hasty completed the grievance process at the Gurney

Unit, neither of his grievance forms specifically named any of

the defendants in this suit.   In the view of the magistrate

judge, the Prison Litigation Reform Act’s exhaustion requirement

demands that a prisoner exhaust administrative remedies with

respect to each defendant that he intends to sue by naming that

defendant in his grievance.1   Second, the magistrate held that

the facts alleged by Hasty did not support a potentially

meritorious constitutional claim.    She explained that, while the

prison medical professionals may not have prescribed the most

     1
          After Hasty drafted his complaint but before it was
filed, the Texas Department of Criminal Justice transferred him
from the Gurney Unit to the Coffield Unit. At the Spears
hearing, Hasty reported that medical personnel at the Coffield
Unit had discontinued his lansoprazole regime. But Hasty’s
appellate brief indicates that, at the time it was filed, Hasty
was receiving lansoprazole without difficulty. In addition,
Hasty concedes that any claims against medical personnel at the
Coffield Unit (which were added at the Spears hearing) are
unexhausted. See Hasty Br. at 24 n.6. We therefore affirm the
dismissal of the Coffield defendants for failure to exhaust
administrative remedies.

                                 3
effective treatment, they did not exhibit deliberate indifference

to his serious medical needs.    Accordingly, the magistrate judge

dismissed Hasty’s action with prejudice under § 1915A(b)(1).

Hasty appeals, challenging both bases for the judgment and

asserting that he should have been permitted to amend his

complaint.

     Dismissals for failure to state a claim under § 1915A are

reviewed de novo, Berry v. Brady, 192 F.3d 504, 507 (5th Cir.

1999), and we review a district court’s determination that a case

is frivolous under § 1915A for abuse of discretion, Martin v.

Scott, 156 F.3d 578, 580 (5th Cir. 1998) (per curiam).    A

complaint fails to state a claim for which relief can be granted

“if as a matter of law it is clear that no relief could be

granted under any set of facts that could be proved consistent

with the allegations.”   Neitzke v. Williams, 490 U.S. 319, 327

(1989) (citation and internal quotation marks omitted).

     Hasty contends that the magistrate judge erred in concluding

that his complaint does not allege an actionable claim under the

Eighth Amendment.   In Estelle v. Gamble, 429 U.S. 97 (1976), the

Supreme Court held that “deliberate indifference to serious

medical needs of prisoners constitutes the ‘unnecessary and

wanton infliction of pain,’ proscribed by the Eighth Amendment.”

Id. at 104 (citation omitted).   But the Court cautioned that

     a complaint that a physician has been negligent in
     diagnosing or treating a medical condition does not state
     a valid claim of medical mistreatment under the Eighth

                                  4
     Amendment.    Medical malpractice does not become a
     constitutional violation merely because the victim is a
     prisoner.   In order to state a cognizable claim, a
     prisoner must allege acts or omissions sufficiently
     harmful to evidence deliberate indifference to serious
     medical needs. It is only such indifference that can
     offend “evolving standards of decency” in violation of
     the Eighth Amendment.

Id. at 106 (emphasis added); accord Hudson v. McMillian, 503 U.S.

1, 9 (1992) (“Because society does not expect that prisoners will

have unqualified access to health care, deliberate indifference

to medical needs amounts to an Eighth Amendment violation only if

those needs are ‘serious.’” (citing Gamble, 429 U.S. at 103-04))

(dictum).   Furthermore, a prison official is deliberately

indifferent to a prisoner’s serious medical needs only when “the

official 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 he must also draw the inference.”

Reeves v. Collins, 27 F.3d 174, 176 (5th Cir. 1994) (per curiam)

(quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)).

     In this case, we are constrained to agree with the

magistrate judge that the conduct alleged by Hasty does not

amount to deliberate indifference to his serious medical needs.

For the most part, prison medical personnel attempted to treat

his condition, and on multiple occasions, they referred him to

specialists at John Sealy Hospital.   While the medical treatment

Hasty received was not perfect, his allegations do not reach the


                                 5
level of severity displayed in the examples of deliberate

indifference offered by the Gamble Court.       See 429 U.S. at 104

n.10 (stating that deliberate indifference could be exhibited by,

e.g., a “doctor’s choosing the easier and less efficacious

treatment of throwing away the prisoner’s ear and stitching the

stump” or the “injection of penicillin with knowledge that

prisoner was allergic, and refusal of doctor to treat allergic

reaction” (citations and internal quotation marks omitted)).

       Hasty relies on Murrell v. Bennett, 615 F.2d 306 (5th Cir.

1980), where (he claims) we held that “a prison doctor’s failure

to provide the proper medical treatment for ulcers can state a

constitutional violation.”    Hasty Br. at 17.    His description of

the case is inaccurate, however.       In Murrell, the prisoner

alleged that the prison medical staff permitted him to pass and

to vomit blood for over two-and-a-half hours before he was

transported to a hospital.    Id. at 307-08.     He was discharged

from the hospital with specific instructions to receive Tagamet

for his bleeding ulcer and to be put on a special diet.       Id. at

308.    He averred that prison personnel refused to provide him

with either, and he further alleged that he was denied another

medication prescribed to him for a urological condition.          Id.

The defendants in Murrell sought summary judgment and offered a

distinct version of the facts, in which there was no delay in

taking the plaintiff to the hospital and he was given a

substitute medication while the prescribed ulcer drug (which was

                                   6
not stocked in the town) was ordered for him.    Id. at 308-09.   We

reversed the district court’s grant of summary judgment because

there existed genuine factual disputes about whether the prison

officials had ignored the plaintiff before getting him to the

hospital and whether those officials had denied him the drugs

prescribed for him.   Id. at 309-10.

     Thus, in Murrell, we rejected the defendants’ attempt to

obtain summary judgment based on their own version of the

disputed facts.   See 615 F.2d at 310 (“Although [the defendants]

urge that their allegations prove conclusively that Murrell does

not have a cause of action, in reality their allegations

highlight the disputed factual issues here.”).   Here, by

contrast, the magistrate judge accepted as true Hasty’s factual

allegations and nonetheless held that they failed to support a

cognizable claim for relief.2   As in Gamble, Hasty’s own

complaint demonstrates the absence of deliberate indifference to


     2
          Hasty also criticizes the magistrate judge’s reliance
on the (apparently unsworn) Spears-hearing testimony of a prison
nurse that Zantac was an appropriate medication to treat his
condition. We recognize that this type of conduct by the
magistrate judge is a problematic use of the time-saving device
of a Spears hearing. See Wilson v. Barrientos, 926 F.2d 480, 483
(5th Cir. 1991) (explaining that witnesses at a Spears hearing
should be sworn and appropriate cross-examination should be
allowed). Nevertheless, we conclude that the magistrate judge’s
error was harmless. Hasty does not allege that Zantac was wholly
ineffective or counterproductive--as if, for example, he had been
given aspirin. Rather, he asserts that Prevacid would have
worked better than Zantac and may have prevented his ulcer. The
magistrate judge accepted as true Hasty’s averments that he did
not receive the most effective medication for his ailment.

                                 7
serious medical needs; he has not alleged treatment constituting

cruel and unusual punishment.   See McCormick v. Stalder, 105 F.3d

1059, 1061 (5th Cir. 1997) (“Deliberate indifference [to serious

medical needs] encompasses only unnecessary and wanton infliction

of pain repugnant to the conscience of mankind.”); see also

Gamble, 429 U.S. at 107 (stating that the decision whether

additional forms of treatment are indicated “is a classic example

of a matter for medical judgment”); Varnado v. Lynaugh, 920 F.2d

320, 321 (5th Cir. 1991) (“Unsuccessful medical treatment does

not give rise to a § 1983 cause of action.   Nor does ‘[m]ere

negligence, neglect or medical malpractice.’” (citations

omitted)).3

     Additionally, Hasty’s contention that the magistrate judge

abused her discretion by dismissing his suit without first

providing him the opportunity to amend his complaint does not

warrant reversal.   To be sure, as Hasty points out, we have said

that a district court should give a plaintiff notice or an

opportunity to amend before dismissing his complaint for failure

to state a claim under a different but similarly worded section

of the Prison Litigation Reform Act.   See Bazrowx v. Scott, 136

F.3d 1053, 1054 (5th Cir. 1998) (per curiam).   But our review of

     3
          While we agree that the dismissal for failure to state
a claim was proper, we are reluctant to conclude that Hasty’s
claim is based on an indisputably meritless legal theory (the
standard for legal frivolousness, Berry, 192 F.3d at 507) and we
thus hold that the magistrate judge erred in determining that
Hasty’s suit was frivolous.

                                 8
the Spears-hearing transcript in this case shows that the topic

of an amendment was raised and that the magistrate judge

correctly counseled Hasty that an amendment was unnecessary, as

his statements at the hearing are considered part of his

pleadings.   See Eason v. Holt, 73 F.3d 600, 602-03 (5th Cir.

1996).   We perceive no abuse of discretion in the magistrate

judge’s disposition of Hasty’s suit.   Cf. Graves v. Hampton, 1

F.3d 315, 318-19 (5th Cir. 1993) (stating that a district court

does not abuse its discretion in dismissing a prisoner’s suit as

frivolous under a previous version of the federal in forma

pauperis statute, 28 U.S.C. § 1915, without allowing an

opportunity to amend if the prisoner has been afforded the chance

to expound on his factual allegations at a Spears hearing and

still has not asserted an arguable claim).

     Accordingly, we affirm the district court’s judgment.4

     AFFIRMED.




     4
          Because we affirm the district court’s judgment on the
merits, we need not reach the question whether Hasty
appropriately exhausted his administrative remedies, except with
respect to those defendants discussed in footnote 1 supra. 42
U.S.C. § 1997e(c)(2).

                                 9
