     Case: 11-20014     Document: 00511578182         Page: 1     Date Filed: 08/22/2011




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

                                                                            FILED
                                                                          August 22, 2011

                                     No. 11-20014                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



ALLEN RAY LEWIS,

                                                  Plaintiff-Appellant
v.

ALAN THOMAS EVANS, AA-C,

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:10-CV-4506


Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Allen Ray Lewis, Texas prisoner # 739984, appeals the district court’s
dismissal of his pro se and in forma pauperis civil rights complaint wherein he
alleged the delay and denial of medical treatment. The district court dismissed
the complaint as frivolous for failure to state a claim under 28 U.S.C. §
1915(e)(2)(B). Our review is de novo. See Geiger v. Jowers, 404 F.3d 371, 373
(5th Cir. 2005).


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-20014

       According to Lewis’s allegations, defendant Alan Thomas Evans, a
physician’s assistant at the prison, examined him several times between the
months of January and May 2010.                   Lewis complained of ear pain and
inflammation of the hair follicles on his back, but Evans did not diagnose Lewis
with any medical problems. On May 4, 2010, a nurse and another prison official
recommended that Evans prescribe antibiotic ear drops for Lewis, but Evans
declined to do so. Some time later, a second nurse examined Lewis’s ear and saw
fluid coming from it. She notified Evans of her opinion that Lewis had an ear
infection, but Evans did not prescribe any medication. Lewis later saw a doctor
who diagnosed him as having an ear infection and prescribed antibiotics. The
doctor also diagnosed Lewis with folliculitis on his back and prescribed
treatment. Lewis alleges that he endured pain and discomfort due to his delayed
treatment for both medical conditions and that Evans denied and delayed his
medical treatment through deliberate indifference.1
       “Delay in medical care can only constitute an Eighth Amendment violation
if there has been deliberate indifference that results in substantial harm.”
Easter v. Powell, 467 F.3d 459, 463 (5th Cir. 2006). In cases involving the denial
of medical treatment, the facts underlying a claim of deliberate indifference
must clearly evince the serious medical need in question and the alleged official
dereliction. Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985). “A serious
medical need is one for which treatment has been recommended or for which the
need is so apparent that even laymen would recognize that care is required.”
Gobert v. Caldwell, 463 F.3d 339, 345 n.12 (5th Cir. 2006).
       “Deliberate indifference is an extremely high standard to meet.” Domino
v. Texas Dep’t of Crim. Justice, 239 F.3d 752, 756 (5th Cir. 2001). “[T]he plaintiff


       1
          Lewis asserts for the first time on appeal that the delayed medical treatment
contributed to his partial hearing loss. This new factual allegation may not be raised for the
first time on appeal. See Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991).

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                                  No. 11-20014

must show that the officials refused to treat him, ignored his complaints,
intentionally treated him incorrectly, or engaged in any similar conduct that
would clearly evince a wanton disregard for any serious medical needs.” Id.
(internal quotation marks and citation omitted). “[M]ere negligence, neglect, or
medical malpractice” do not constitute deliberate indifference. Varnado, 920
F.2d at 321. Even “gross negligence” does not establish deliberate indifference.
Hernandez v. Tex. Dep’t of Prot. and Reg. Servs., 380 F.3d 872, 882 (5th Cir.
2004).
      Lewis has alleged no more than negligence and medical malpractice.
Evans did not ignore Lewis’s complaints. Rather, Evans examined Lewis several
times in response to his complaints. Although Evans failed to diagnose Lewis’s
infected ear and folliculitis, “[i]t is indisputable that an incorrect diagnosis by
prison medical personnel does not suffice to state a claim for deliberate
indifference.” Domino, 239 F.3d at 756.
      Lewis’s allegations do not rise to the standard of deliberate indifference
even though he alleges that two nurses recommended on or after May 4, 2010
that Evans prescribe antibiotics for his ear.             The nurses made these
recommendations after Evans had personally examined Lewis on several
occasions between January and May 2010. Evans was entitled to rely on his own
medical judgment based on his personal examinations of Lewis rather than the
judgment of the two nurses, who had no authority to prescribe medication. See
generally Gobert, 463 F.3d at 350 n.32. (“Considering and failing to follow the
recommendations of another treating physician does not amount to deliberate
indifference.”). Evans’s alleged refusal to heed the nurses’ recommendations,
even if true, would not prove that he wantonly disregarded Lewis’s medical
needs.




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                                      No. 11-20014

      In sum, although Evans allegedly failed to diagnose Lewis’s medical
conditions, leading to delayed treatment, such negligence does not rise to the
level of a constitutional violation.2
      The judgment is AFFIRMED.




      2
          We also deny Lewis’s motion for appointment of counsel.

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