            IN THE UNITED STATES COURT OF APPEALS

                              FOR THE FIFTH CIRCUIT
                                          _______________

                                            m 00-10553
                                          _______________



                                       ELBERT SILAS GREEN,

                                                             Plaintiff-Appellant,

                                               VERSUS

            HENDRICK MEDICAL CENTER; UNIT HEALTH ADMINISTRATOR;
                    NFN COLLIER, D.D.S.; NFN MRS. BROWN;
         R.O. LAMPERT, SENIOR WARDEN; JAMES DUKE, ASSISTANT WARDEN;
                        ROCHELLE MCKINNEY, R.N. M.A.,

                                                             Defendants-Appellees.


                                    _________________________

                            Appeal from the United States District Court
                                for the Northern District of Texas
                                          (1:98-CV-131)
                                 _________________________
                                          March 7, 2001


Before REAVLEY, SMITH, and DeMOSS,                      Elbert Green, an inmate who since has been
  Circuit Judges.                                    released from prison, sued, pro se and in
                                                     forma pauperis (“IFP”), Hendrick Medical
JERRY E. SMITH, Circuit Judge:*                      Center, which is the medical contractor for in-
                                                     mates of the John Middleton Transfer Facility,
                                                     and various administrators, alleging violations
   *
     Pursuant to 5TH CIR. R. 47.5, the court has     of his Eighth Amendment and due process
determined that this opinion should not be
published and is not precedent except under the
                                                        *
limited circumstances set forth in 5TH CIR. R.           (...continued)
                                   (continued...)    47.5.4.
rights. The district court dismissed these              three levels of urgency for dental care.1
claims as frivolous. We affirm in part, vacate
in part, and remand for further proceedings.                The case was transferred to another
                                                        magistrate judge, who dismissed it as
                       I.                               frivolous. Green objected, stating that he had
    Green alleged violations of his civil rights        not consented to resolution by a magistrate
from alleged deliberate indifference to his den-        judge. The district court agreed and issued its
tal needs. During meals in the facility, officers       own dismissal of the claim as frivolous. The
forced inmates to eat quickly. Because Green            court found that Green was “seen by the
had loose dentures, eating so quickly caused            medical department eleven times” between his
painful lacerations, swelling, and bleeding in          entry into TDCJ and when he received new
his gums. He alleges that this condition                dentures. It concluded that the defendants had
caused him to forego one meal each day.                 not acted with deliberate indifference and that
                                                        any harm Green had experienced resulted from
   When Green entered the John Middleton                negligence only. Green appeals, claiming the
Transfer Facility in October 1996, Dr. Collier,         court erred in dismissing his claim as frivolous,
the dentist, advised him to replace or reline his       because it (1) failed to construe his pleadings
dentures.     Green submitted a grievance               liberally and (2) relied on medical records de-
seeking treatment for the condition, but Collier        veloped after the fact of the complaint and not
and the warden advised Green that he had to             provided to him, in violation of the Due
be in the Texas Department of Criminal Justice          Process Clause.
(“TDCJ”) for twelve months to be eligible to
get his dentures relined.         The warden                                     II.
suggested that Green obtain a blended food                  A district court must dismiss an IFP suit “if
pass if he was having trouble eating, but Green         [it] determines that the action is frivolous or
appears to have refused, calling the pass “un-          malicious.” 28 U.S.C. § 1915(e)(2)(B)(i). A
necessary punishment” and “tactical delay.”             claim is frivolous if it lacks any arguable basis
He submitted grievances to no avail.                    in law or fact. Harris v. Hegmann, 198 F.3d
                                                        153, 156 (5th Cir. 1999). “A complaint lacks
   Green sought declaratory relief and                  an arguable basis in law if it is based on an
monetary damages, contending that his lack of           indisputably meritless legal theory, such as if
dental treatment violates the Eighth                    the complaint alleges violation of a legal
Amendment. The district court referred the              interest which . . . does not exist.” Harper v.
case to a magistrate judge, who furnished
Green with a questionnaire in lieu of a hearing.
In his responses to the questionnaire, Green               1
                                                              “Priority I needs are emergency or urgent
noted that he controlled his loose dentures
                                                        problems including traumatic injuries, severe pain,
with adhesive and had not seen a dentist since          infection, and swelling.” Priority II needs include
the early 1970’s. He further explained that the         “[f]ull dentures or false teeth . . . for offenders with
Marshall Formby State Jail, his next facility,          few teeth or no teeth at all.” Priority III care is
replaced his dentures when twelve months had            available after an inmate has served at least six
elapsed. Green also presented a copy of the             months in the TDCJ system. Priority III care, such
TDCJ’s dental services policy, which set forth          as cleanings, fillings, and partial dentures, are
                                                        available after twelve months.

                                                    2
Showers, 174 F.3d 716, 718 (5th Cir. 1999).                      Amendment . . . unless the of-
“A complaint is factually frivolous when the                     ficial knows of and disregards
facts alleged are fantastic or delusional                        an excessive risk to inmate
scenarios or the legal theory upon which a                       health or safety; the official
complaint relies is indisputably meritless.”                     must both be aware of facts
Harris, 198 F.3d at 156 (internal quotations                     from which the inference could
omitted). We review a dismissal of an IFP suit                   be drawn that a substantial risk
as frivolous for abuse of discretion. Berry v.                   of serious harm exists, and he
Brady, 192 F.3d 504, 507 (5th Cir. 1999).                        must also draw the inference.
                                                                 Farmer v. Brennan, 114 S. Ct.
                        A.                                       1970, 1980 (1994).
    Green contends the court did not construe
his pleadings liberally. “[C]ourts must liberally                “It is firmly established that
construe pro se pleadings.” United States v.                negligent or mistaken medical treatment
Riascos, 76 F.3d 93, 94 (5th Cir. 1996). Con-               or judgment does not implicate the
struing Green’s pleadings liberally, he alleges             eighth amendment and does not provide
that the John Middleton facility treated his                the basis for a civil rights action.”
condition as a Priority III when he had a                   Graves v. Hampton, 1 F.3d 315, 319
Priority I emergency. Green believes that his               (5th Cir. 1993).
“severe pain” and “swelling” bring him within
the ambit of Priority I, while Priority III should          Even though the district court did not
be reserved for “cosmetic” treatments.                   directly address whether the prison officials
    The district court’s opinion essentially ad-         misprioritized Green’s condition, the decision
dresses this issue. In discussing the standard           to classify a medical problem as a Priority III
applicable to Green’s Eighth Amendment                   rather than a Priority I is part of the doctor’s
claim, the court notes:                                  diagnosis and recommendation for treatment.
                                                         The above reasoning, then, applies the same
   Not every claim of inadequate or                      to the issue of prioritization as it does to
   improper medical treatment is a                       Green’s more general claim of deliberate in-
   violation of the Constitution. Estelle v.             difference. Thus, Green gains nothing by a
   Gamble, 429 U.S. 97, 105-07 [(1976)].                 more liberal construction, and the district court
   “In order to state a cognizable claim, a              did not err in that regard. The question
   prisoner must allege acts or omissions                remains, however, whether the court erred in
   sufficient ly harmful to evidence                     finding the claim frivolous.
   deliberate indifference to serious medical
   needs.” Id. at 106.                                                          B.
                                                                                1.
        The Supreme Court has defined de-                    Green sued several of the prison officials in
   liberate indifference as “subjective reck-            their supervisory capacities. Supervisory of-
   lessness” and:                                        ficials are not liable for the actions of their
                                                         subordinates on a theory of vicarious liability
        [A] prison official cannot be                    or respondeat superior. Thompkins v. Belt,
        found liable under the Eighth                    828 F.2d 298, 303 (5th Cir. 1987).


                                                     3
“Supervisory officials may be held liable only            deprivation of food does not deny a prisoner
if: (i) they affirmatively participate in acts that       the “minimal measure of life’s necessities,” it
cause constitutional deprivations; or (ii) they           does not violate the Constitution. Id. (quoting
implement unconstitutional policies that                  Talib v. Gilley, 138 F.3d 211, 213 n.3 (5th
causally result in plaintiff’s injury.” Mouille v.        Cir. 1998). Even missing fifty meals in five
City of Live Oak, 977 F.2d 924, 929 (5th Cir.             months does not violate the Constitution; in-
1993).                                                    deed, two meals per day may be adequate. Id.
                                                          Green has no constitutionally-protected right
    With respect to Warden Lampert, Assistant             to consume his meals at a rate that pleases
Warden Duke, Nurse McKinney, and Mrs.                     him.
Brown, Green has alleged only that they de-
nied his grievances. A denial of a prison griev-              To the extent that eating quickly
ance, even when officials fail to follow internal         exacerbated his medical condition, Green’s
regulations is not tantamount to a con-                   complaint is not with the dining hall policy, but
stitutional violation. See Hernandez v. Estelle,          with his medical treatment. Prison officials of-
788 F.2d 1154, 1158 (5th Cir. 1986).                      fered Green a blended food pass, which he
Moreover, Green has not alleged that these                refused. An inmate’s disagreement with med-
defendants creat ed the policy in question.               ical treatment does not give rise to a con-
Thus, the district court did not abuse its                stitutional claim. Martinez v. Turner, 977
discretion in finding that Green’s description            F.2d 421, 423 (8th Cir. 1992). Thus, the court
of these defendants’ involvement in his dental            did not err in dismissing this portion of
care did not establish liability under § 1983.            Green’s claim as frivolous, because Green
The court correctly dismissed these claims as             seeks to protect a legal interest that does not
frivolous.                                                exist.

                        2.                                                       3.
    Green contends that forcing inmates to                   Collier, by contrast, had personal
finish their meals in five to eight minutes vio-          involvement in examining Green and denying
lates the Eighth Amendment. He intentionally              him treatment. Green argues that Collier was
did not name any of the dining hall supervisors           deliberately indifferent to his medical needs, by
in his complaint that the district court                  refusing to replace or reline his dentures soon-
dismissed as frivolous; therefore, he challenges          er and by refusing to treat his sore gums. To
only the constitutionality of the policy.2                succeed on this claim, Green must show that
    The Eighth Amendment requires that in-                Collier was deliberately indifferent to his seri-
mates be provided well-balanced meals with                ous medical needs, knowingly inflicting wan-
sufficient nutritional value to preserve health.          ton and unnecessary pain. See Stewart v. Mur-
Berry, 192 F.3d at 507. If, however, a                    phy, 174 F.3d 530, 533 (5th Cir.), cert.
                                                          denied, 528 U.S. 906 (1999). Inadequate
                                                          treatment may rise to the level of a
   2
     The court dismissed the claim as frivolous in        constitutional violation, but negligent care or
part because Green did not name the dining hall           malpractice does not. Id. at 534.
supervisors in his complaint. We may affirm the
district court, however, on any basis supported by           Although this standard raises a high bar to
the record. Berry, 192 F.3d at 507.

                                                      4
prisoners’ claims, the facts Green alleges may             deliberately indifferent to an inmate’s medical
support a claim under the Eighth Amendment.                needs when he left a cavity untreated for one
For the dismissal to be proper, Green’s claim              year after discovering the condition.3
must lack an arguable basis in law or fact; it
must rest on the violation of a legal interest                These cases demonstrate that in closely an-
that does not exist or allege baseless facts.              alogous fact situations, courts have recognized
Berry, 192 F.3d at 507. Green has alleged that             claims of deliberate indifference. Certainly, the
Collier examined him but refused to provide                district court might have distinguished Green’s
him with new or relined dentures or to treat his           case from the aforementioned examples on the
gums. Although “a prison official is not liable            basis that he refused the palliative measure
for the denial of medical treatment ‘unless the            offered him; indeed, Green never asserted that
official knows of and disregards an excessive              the blended food would not alleviate his pain.
risk to inmate health or safety,’” Harris, 198             The court also might find that Green’s
F.3d at 159 (citing Stewart, 174 F.3d at 534),             condition lacked sufficient degenerative impact
Green’s claim is not “indisputably meritless.”             to require Collier to treat him more quickly.
Harper, 174 F.3d at 718.                                   Additionally, the court might construe
                                                           Collier’s actions as merely negligent treatment.
   Deprivation of dental treatment may                     As the district court noted, “[u]nsuccessful
constitute deliberate indifference. In Harris,             medical treatment does not give rise to a
198 F.3d at 159-60, we recognized that a                   § 1983 cause of action,” nor does “mere
prisoner presented a cognizable Eighth                     negligence, neglect, or medical malpractice.”
Amendment claim where prison officials                     Varnando v. Lynaugh, 920 F.2d 320, 321 (5th
denied him access to dental care for his broken            Cir. 1991).4
jaw and forced him to eat solid food. One
circuit countenanced an Eighth Amendment                      This analysis, though, indicates that Green
claim where an inmate’s lost dentures caused               has alleged facts sufficient to raise an Eighth
him bleeding gums, interfered with his ability             Amendment issue about which reasonable le-
to eat, and permanently damaged his teeth, but             gal minds could differ. Therefore, this claim is
prison officials failed to relieve his pain or             not, on its face, indisputably meritless. The
prescribe a soft food diet. See Hunt v. Dental             court may have erred in dismissing this claim
Dep’t, 865 F.2d 198, 200 (9th Cir. 1989).                  as frivolous.

   In Chance v. Armstrong, 143 F.3d 698 (2d
Cir. 1998), the court held that a prison
dentist’s refusal to fill a cavity rose to the level          3
of deliberate indifference, because the tooth                    See also Williams v. Scully, 552 F. Supp.
deteriorated to the point that it had to be                431, 432 (S.D.N.Y. 1982) (finding that making an
                                                           inmate wait 5½ months for a cavity filling
pulled. The Chance court found significant
                                                           presented an issue of material fact as to deliberate
that the prisoner’s inability to chew properly             indifference).
caused extreme pain and impaired his daily
activities. Id. at 702-03. Similarly, the court in            4
                                                                 “Medical malpractice does not become a con-
Harrison v. Barkley, 219 F.3d 132, 137-39                  stitutional violation merely because the victim is a
(2d Cir. 2000), found that a prison dentist was            prisoner.” Estelle v. Gamble, 429 U.S. 97, 106
                                                           (1976).

                                                       5
                        III.                            action . . . is inherently plausible and internally
   The district court correctly noted that              consistent, a court may not for purposes of a
“[m]edical records of sick calls, examinations,         [§ 1915(e)] dismissal simply choose to believe
diagnoses, and medications may rebut an                 conflicting material facts alleged by the
inmate’s allegations of deliberate indifference.”       defendants. It is only for the trier of fact to
Banuelos v. McFarland, 41 F.3d 232, 235                 decide which party is more believable.”
(5th Cir. 1995). If the court relied on properly        Wesson v. Oglesby, 910 F.2d 278, 282 (5th
authenticated medical records from the John             Cir. 1990).
Middleton facility, then it may have properly
dismissed the claim. Green argues, however,                 Moreover, if these records were presented
that the court improperly relied on medical             during the magistrate judge’s factfinding pro-
records from the Marshall Formby facility, the          cess in accordance with Spears v. McCotter,
prison to which he was transferred following            766 F.2d 179 (5th Cir. 1985), overruled on
his stay at John Middleton. Green maintains             other grounds by Denton v. Hernandez, 504
that after the initial examination, he received         U.S. 25 (1992), the district court arguably
no medical treatment at John Middleton; these           used the documents impermissibly to refute
records document treatment after the time of            Green’s testimony. See Norton v. Dimazana,
the alleged Eighth Amendment violation.                 122 F.3d 286, 292 (5th Cir. 1997) (noting that
                                                        a defendant may not use medical records to
   A court may base a dismissal under 28                defeat a prisoner’s testimony at a Spears hear-
U.S.C. § 1915(e) “on medical or other prison            ing). In a Spears hearing, “the court should
records if they are adequately identified and           allow proper cross-examination.” Id. Green
authenticated.” Banuelos v. McFarland, 41               asserts that the court did not allow him to
F.3d 232, 234 (5th Cir. 1995). Although we              review or refute this evidence against him.
grant wide discretion to the district court to
dismiss prisoners’ IFP complaints as frivolous,                               IV.
the court must use authentic and reliable evi-              Without more before us, we cannot
dence. If such documents are not adequately             determine conclusively whether the district
authenticated, judgments that rely on them              court improperly used and relied on these
must be vacated. Wilson v. Barrientos, 926              records. Further, without resolving the
F.2d 480, 483 (5th Cir. 1991).                          question of fact as to the institution whence
                                                        the records come, we cannot decide whether
   The court found that “[b]etween the time             the court properly dismissed Green’s claim as
plaintiff entered [the Texas prison system] and         frivolous.
the time he received his new dentures, he was
seen by the medical department eleven times                 Accordingly, we AFFIRM the dismissal of
and was scheduled for thirteen meetings.” The           Green’s claims against Warden Lampert, As-
court does not indicate from which facility             sistant Warden Duke, Nurse McKinney, and
these records came. These documents are not             Mrs. Brown. We AFFIRM the dismissal of
part of the record on appeal; without them, we          the claim that the prison dining policy violated
cannot determine the credibility either of              Green’s Eighth Amendment rights. We
Green or of the records. “[I]f a prisoner’s             VACATE and REMAND the dismissal of the
version of the facts underpinning a civil rights        claims against Dr. Collier for factual findings


                                                    6
consistent with this opinion. We express no
view as to the appropriate ultimate resolution
of these claims.




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