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

                                               FILED
                                                           October 26, 2009
                              No. 08-40653
                            Summary Calendar             Charles R. Fulbruge III
                                                                 Clerk




ROBERT M. FENLON,

                                        Plaintiff-Appellant,

versus

NATHANIEL QUARTERMAN, Director,
Texas Department of Criminal Justice, Correctional Institutions Division,
in Both His Official and Personal Capacity;
CHIEF ADMINISTRATOR OF UNIVERSITY OF TEXAS
MEDICAL PROVIDERS, Employed by University of Texas Medical Branch;
PERSONS UNKNOWN, Employed by Texas Department of Criminal Justice;
UNIDENTIFIED OFFICERS,
Employed by Texas Department of Criminal Justice;
LIEUTENANT BALDWIN,
Law Library Supervisor Employed by Texas Department of Criminal Justice,

                                        Defendants-Appellees.




                Appeal from the United States District Court
                     for the Eastern District of Texas
                              No. 6:07-CV-532
                                       No. 08-40653

Before DAVIS, SMITH, and DENNIS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*


       Robert Fenlon, a Texas state prisoner, sued under 42 U.S.C. § 1983 for al-
leged violations of his constitutional rights. The district court found Fenlon’s
claims entirely without merit and dismissed the lawsuit as frivolous under 28
U.S.C. § 1915A(b). Fenlon appeals. Finding no error, we AFFIRM.


                                              I.
       Fenlon brought nine claims; the first four related to a cancerous lump in
his neck and an abdominal aneurysm. In his complaint and at an evidentiary
hearing held pursuant to Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985), Fen-
lon stated that for years he was told that the lump on his neck was not cancer.
It was later determined that the lump is squamous cell carcinoma, a type of can-
cer.
       Fenlon claimed his chance of eradicating the cancer has been significantly
harmed by the doctors’ failure to identify it earlier. In his first cause of action,
he alleged that his medical care reflects deliberate indifference to his medical
needs. In his second, Fenlon averred that the six-month wait between the time
his cancer was diagnosed and his operation shows deliberate indifference proxi-
mately caused by the policy of underfunding the prisoner medical care system.
His third claim involved an abdominal aneurysm. Fenlon had complained to
prison medical providers of a “pulsing lump” in his stomach, but they had told
him it was not a problem. A few years later, that lump was diagnosed as an ab-
dominal aneurysm. He claimed deliberate indifference. The aneurysm was di-


       *
         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. 08-40653

agnosed in June 2007 and operated on on August 7, 2007. He alleged that the
forth-three-day delay between diagnosis and surgery showed deliberate indif-
ference. In his fifth claim, Fenlon asked for an injunction ordering that his teeth
be repaired. His sixth claim related to denial of post-operation medication at
nighttime. He averred that the problem is with Texas Department of Criminal
Justice (“TDCJ”) policy, which does not provide nighttime medication to prison-
ers after surgery.
      Fenlon’s seventh claim concerned discomfort caused by the buses that reg-
ularly transport him from his prison to off-site medical hospitals at his request.
Fenlon argued that the buses’ “truck-like suspensions” and lack of air condition-
ing combined to create a ride that amounted to torture. In his final two claims,
Fenlon argued that he was denied access to court. Specifically, he complained
that he can access the prison’s law library for only fifteen hours per week. He
also contended that he could not file his petition for writ of certiorari to the U.S.
Supreme Court, because the petition required a copy of the district court’s opin-
ion, and TDJC policy does not give prisoners access to a photocopy machine.
      Fenlon presented these claims pro se. The district court held a Spears
hearing, thoroughly identified Fenlon’s factual and legal allegations, and com-
prehensively reviewed his prison records. The court then dismissed Fenlon’s
claims in a lengthy and exhaustively-documented opinion.
      Fenlon appeals, arguing that the court failed to address his true allega-
tions. He invites us to consider the judgment through the framework of the
Madisonian Compromise and the Separation of Powers doctrine. We decline the
opportunity to expound on the origins of our federal judiciary.


                                         II.
      The district court described the five-year delay in identifying the squa-
mous cell carcinoma as the “heart of Fenlon’s complaint.” Although the court

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sympathized with Fenlon’s personal tragedy, it did not find evidence of delib-
erate indifference to his medical needs. “Deliberate indifference is an extremely
high standard to meet. It is indisputable that an incorrect diagnosis by prison
medical personnel does not suffice to state a claim for deliberate indifference.”
Domino v. TDCJ-ID, 239 F.3d 752 (5th Cir. 2001). The district court did not find
a constitutional violation in the delay of several months for treatment or a policy
of deliberately underfunding medical care for prisoners.
      The court also dismissed Fenlon’s allegations that prison bus rides amount
to torture, citing Rhodes v. Chapman, 452 U.S. 337, 346-47 (1981), for the propo-
sition that restrictive and harsh prison conditions are part of the penalty im-
posed by society on criminal offenders. The court emphasized that mere discom-
fort or inconvenience does not amount to an Eighth Amendment violation, Wil-
son v. Lynaugh, 878 F.2d 846, 849 (5th Cir. 1989), and Fenlon’s allegations do
not amount to anything more. Fenlon also did not show any constitutionally sig-
nificant harm from the few hours during which he was denied pain medication.
Nor did he show that prison officials were deliberately indifferent to his dental
needs or that he has been denied access to court. The district court found Fen-
lon’s entire complaint to be frivolous and meritless under § 1915A and Neitzke
v. Williams, 490 U.S. 319, 325-27 (1989).


                                       III.
      We review a § 1915 dismissal as frivolous for abuse of discretion. Wilson,
878 F.2d at 850. “District courts have broad discretion in determining whether
a complaint is frivolous.” Id. at 849. The record establishes that Fenlon’s claims
are without merit. Mere medical negligence does not give rise to a § 1983 claim,
just as mere discomfort on bus rides does not trigger the Eighth Amendment.
Brief delays in receiving pain medication and medical care do not give rise to
claims of a constitutional dimension, either. The district court held a Spears

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hearing, carefully considered Felon’s complaint, and reviewed his prison records.
We find no error in that court’s thorough and careful opinion, and, essentially
for the reasons set forth therein, we AFFIRM.         All pending motions are
DENIED.




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