     Case: 09-50256     Document: 00511111866         Page: 1     Date Filed: 05/14/2010




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

                                                  FILED
                                                                           May 14, 2010
                                     No. 09-50256
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

JAY MARTIN BARNES,

                                                  Plaintiff-Appellant,

v.

MILAM COUNTY SHERIFF’S DEPARTMENT; SHERIFF CHARLIE WEST;
MILAM COUNTY HEALTH PROVIDERS,

                                                  Defendants-Appellees.


                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 6:09-CV-11


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
        Jay Martin Barnes, Texas inmate # 1176708, moves for leave to proceed
in forma pauperis (IFP) on appeal following the district court’s denial of his IFP
motion and certification that his appeal is not taken in good faith. Barnes’s IFP
motion challenging the certification decision “must be directed solely to the trial
court’s reasons for the certification decision.” Baugh v. Taylor, 117 F.3d 197, 202
(5th Cir. 1997). Our inquiry into whether the appeal is taken in good faith “is


        *
         Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 09-50256

limited to whether the appeal involves legal points arguable on their merits (and
therefore not frivolous).” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983)
(internal quotation marks and citations omitted).
      The district court is directed to dismiss a complaint filed by a prisoner if
the complaint is frivolous.    See 28 U.S.C. §§ 1915A(b)(1), 1915(e)(2)(B).        A
movant for leave to proceed IFP on appeal must show that he is a pauper
appealing in good faith, i.e., that his appeal presents a nonfrivolous issue.
Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982). “Frivolous” is defined as
“lack[ing] an arguable basis in law or fact.” Taylor v. Johnson, 257 F.3d 470, 472
(5th Cir. 2001). “[A] complaint lacks such a basis if it relies on an indisputably
meritless legal theory.” Id. The dismissal of a complaint as frivolous is reviewed
for abuse of discretion, and the dismissal of a complaint for failure to state a
claim under § 1915A is reviewed de novo. Geiger v. Jowers, 404 F.3d 371, 373
(5th Cir. 2005).     Because the district court’s dismissal was based on
§ 1915(e)(2)(B)(i), (ii) and § 1915A(b)(1), review is de novo. See id.
      Barnes maintains that, while he was in their custody, the defendants
discontinued his prescribed medications and substituted other medications and
that the defendants otherwise denied him medical care when he needed it.
Proceeding pursuant to 42 U.S.C. § 1983, he asserts that the defendants’ actions
and omissions violated rights guaranteed him by the Eighth and the Fourteenth
Amendments.
      Prison officials violate the constitutional proscription against cruel and
unusual punishment when they exhibit deliberate indifference to a prisoner’s
serious medical needs, causing unnecessary and wanton infliction of pain.
Wilson v. Seiter, 501 U.S. 294, 297 (1991). To prevail on a claim of inadequate
medical care, a plaintiff “must allege acts or omissions sufficiently harmful to
evidence deliberate indifference to serious medical needs.” Estelle v. Gamble,
429 U.S. 97, 106 (1976). “The legal conclusion of ‘deliberate indifference’ . . .
must rest on facts clearly evincing ‘wanton’ actions on the part of the

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defendants.” Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985). A prison
official acts with deliberate indifference only if he “knows of and disregards an
excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 837
(1994); Reeves v. Collins, 27 F.3d 174, 176 (5th Cir. 1994) (applying Farmer to
medical claims). This requires not only that the official be aware of the facts
from which the inference could be drawn that a substantial risk of serious harm
exists but also that he indeed draw the inference. Farmer, 511 U.S. at 839.
Neither unsuccessful medical treatment, nor negligence, nor medical malpractice
is enough to give rise to a § 1983 cause of action. Stewart v. Murphy, 174 F.3d
530, 534 (5th Cir. 1999). Further, a prisoner’s disagreement with his medical
treatment is ordinarily insufficient to support an action under § 1983. Banuelos
v. McFarland, 41 F.3d 232, 235 (5th Cir. 1995).
      Barnes’s allegations of deliberate indifference are conclusory and do not
suffice to raise a nonfrivolous appellate issue. See Mowbray v. Cameron County,
Tex., 274 F.3d 269, 278 (5th Cir. 2001). Further, Barnes’s allegations that jail
officials changed his medications state, at best, a claim of malpractice or of
negligence, neither of which is actionable under § 1983. See Stewart, 174 F.3d
at 534. Moreover, Barnes’s acknowledgment that the defendants provided him
with care when he was in medical crises belies his claim that they were
indifferent to his medical needs.
      Barnes has failed to show that the district court erred in dismissing his
complaint. See Geiger, 404 F.3d at 373. Because Barnes’s appeal does not
present a nonfrivolous issue, his IFP motion is denied and his appeal is
dismissed. See Carson, 689 F.2d at 586; 5th Cir. R. 42.2. The dismissal of
Barnes’s complaint counts as a strike for purposes of § 1915(g), and the dismissal
of his appeal counts as a second strike. Cf. Adepegba v. Hammons, 103 F.3d 383,
387-88 (5th Cir. 1996). Barnes is cautioned that if he accumulates three strikes
under § 1915(g) he will not be able to proceed IFP in any civil action or appeal



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filed while he is incarcerated or detained in any facility unless he is under
imminent danger of serious physical injury. See § 1915(g).
     MOTION        TO   PROCEED    IFP    DENIED;    APPEAL     DISMISSED;
SANCTION WARNING ISSUED.




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