     Case: 17-30614      Document: 00514522437         Page: 1    Date Filed: 06/21/2018




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

                                                                                 FILED
                                    No. 17-30614                             June 21, 2018
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
STEVEN ANTHONY WALCOTT, JR.,

                                                 Plaintiff-Appellant

v.

TERREBONNE PARISH JAIL MEDICAL DEPARTMENT; RICHARD NEAL,
incorrectly identified in the original complaint as Peedie Neal; NURSE PAT;
NURSE KIM; NURSE DOMINIC,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                            USDC No. 2:16-CV-15594


Before BENAVIDES, SOUTHWICK, and COSTA, Circuit Judges.
PER CURIAM: *
       Steven Anthony Walcott, Jr. (Terrebonne Parish # 51734/Louisiana
prisoner # 344820), appeals the district court’s conclusion that his 42 U.S.C.
§ 1983 complaint in which he alleged that the defendants were deliberately
indifferent to his serious medical needs was frivolous and failed to state a claim



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-30614

for which relief may be granted. We review the district court’s dismissal de
novo. See Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005).
      Walcott maintains that members of the medical staff at the Terrebone
Parish Jail Medical Department did not correctly identify his medical issues or
prescribe effective treatments; he asserts that the staff, on multiple instances,
recommended treatments that did not address his symptoms and, on occasion,
caused his condition to worsen. Walcott further contends that the staff did not
promptly provide him with pain medication and, moreover, delayed his medical
care by pursuing unsuccessful treatments instead of referring him to a doctor.
He asserts that the staff did not follow professional standards or protocols and
mistreated him in order to inflict pain. Because he has not asserted a claim on
appeal as to the Terrebone Parish Jail Medical Center, he has abandoned any
challenge to the dismissal of his claims as to that defendant. See Brinkmann
v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
      The record does not reflect that the medical staff was aware that Walcott
faced a substantial risk of serious harm because of his medical issues, ignored
that risk, and intended for him to be harmed. See Farmer v. Brennan, 511 U.S.
825, 847 (1994); Reeves v. Collins, 27 F.3d 174, 176-77 (5th Cir. 1994); Tamez
v. Manthey, 589 F.3d 764, 770 (5th Cir. 2009). Rather, the staff attempted to
diagnose, treat, and monitor Walcott’s medical issues and reacted to concerns
about the efficacy of their suggested treatments by repeatedly changing their
recommendations. The staff made ongoing efforts to alleviate Walcott’s pain
and symptoms by, inter alia, prescribing various medications (e.g., antibiotics,
anti-inflammatories, pain medicine). Their alleged failures to offer an accurate
diagnosis, prescribe effective treatments, and make perfect decisions as to the
management of Walcott’s conditions and pain do not establish their deliberate
indifference. See Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006); Domino



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                                 No. 17-30614

v. Tex. Dep’t of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001); Mendoza v.
Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993). While Walcott disapproved of his
treatment, and the staff, at worst, was negligent, he cannot establish a claim
of deliberate indifference on those bases. See Gobert, 463 F.3d at 346; Varnado
v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991). Any failure of the staff to follow
professional standards or protocols is irrelevant. See Gobert, 463 F.3d at 346,
349; Hernandez v. Estelle, 788 F.2d 1154, 1158 (5th Cir. 1986). Thus, Walcott’s
deliberate-indifference claim is unavailing.
      Walcott also questions the merits of the defendants’ motion to dismiss
for insufficient service of process pursuant to Federal Rule of Civil Procedure
12(b)(5), challenges the dismissal of his complaint in light of that motion, and
contests the district court’s sua sponte dismissal of his complaint. However,
the district court did not dismiss Walcott’s complaint based on the defendants’
motion; the district court sua sponte dismissed the complaint as frivolous and
for failure to state a claim and dismissed the motion to dismiss as moot. Thus,
Walcott’s claims as to the motion to dismiss are inapposite. The district court’s
sua sponte dismissal otherwise was proper because the record establishes that
Walcott had the opportunity to plead his best case. See Jacquez v. Procunier,
801 F.2d 789, 792-93 (5th Cir. 1986).
      The district court’s dismissal of Walcott’s complaint counts as a strike
under 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88
(5th Cir. 1996). Walcott is cautioned that if he accumulates three strikes, he
will not be able 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 § 1915(g).
      AFFIRMED; SANCTION WARNING ISSUED.




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