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

                                                                            FILED
                                                                        November 19, 2007
                                     No. 06-60397
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

CORNELIUS TAYLOR

                                                  Plaintiff-Appellant

v.

CMCF 720 CLINIC; MISSISSIPPI DEPARTMENT OF CORRECTIONS;
CHRISTOPHER B EPPS; LAWRENCE KELLY; ROBERT CULPEPPER;
GLORIA PERRY; JOHN DOES

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:04-CV-520


Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Cornelius Taylor, Mississippi prisoner # K3171, alleged
under 42 U.S.C. § 1983 that, when he suffered a heart attack, prison clinic
officials gave him substandard treatment and delayed calling an ambulance to
take him to the hospital, thereby causing extensive damage to his heart. Taylor
appeals the district court’s dismissal of his complaint under 28 U.S.C.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 06-60397

§ 1915(e)(2)(B)(i) and (ii) as frivolous and for failure to state a claim on which
relief may be granted.     We review a dismissal as frivolous pursuant to
§ 1915(e)(2)(B)(i) for abuse of discretion and review a dismissal for failure to
state a claim pursuant to § 1915(e)(2)(B)(ii) de novo. Geiger v. Jowers, 404 F.3d
371, 373 (2005); Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir. 1999). As the
district court dismissed the claims pursuant to both subsections, our review is
de novo. See Geiger, 404 F.3d at 373.
      Taylor asserts that the prison clinic staff had access to his health records
which show that he had suffered a heart attack prior to his incarceration;
therefore the clinic staff had actual knowledge of the risk to his health that
would result from delaying proper treatment. He is incredulous that the clinic
staff could have given him such substandard treatment but for deliberate
indifference.
      Prison officials violate the Eighth Amendment’s prohibition against cruel
and unusual punishment when they demonstrate deliberate indifference to a
prisoner’s serious medical needs, constituting an “unnecessary and wanton
infliction of pain,” or when they delay medical care “if there has been deliberate
indifference [that] results in substantial harm.” Estelle v. Gamble, 429 U.S. 97,
104-05 (1976) (internal quotations and citation omitted); Easter v. Powell, 467
F.3d 459, 463 (5th Cir. 2006) (internal quotation marks and citation omitted).
A prison official acts with deliberate indifference when he “knows of and
disregards an excessive risk to inmate health or safety; the official must both
be aware of facts from which the inference could be drawn that a substantial risk
of serious harm exists, and he must also draw the inference.” Farmer v.
Brennan, 511 U.S. 825, 837 (1994).
      The facts alleged by Taylor demonstrate that, in the two and a half hours
that Taylor was in the prison clinic before being transported to the hospital, the
clinic staff tried to ascertain whether Taylor was having a heart attack. They
performed an enzyme test and placed Taylor on a cardiac monitor; provided

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                                 No. 06-60397

Taylor with oxygen, an analgesic, and an aspirin; and attempted to keep him
calm. It appears to be true that the clinic staff wrongly concluded that Taylor
was not having a heart attack, but when Taylor’s symptoms did not improve, he
was taken to a hospital in an ambulance. (Taylor has no complaint about his
treatment in the hospital.)
      Taylor may have pled facts sufficient to demonstrate that he was the
victim of medical malpractice or negligence and that he suffered serious harm
as a result; however, unsuccessful medical treatment, negligence, neglect, and
medical malpractice do not give rise to a § 1983 action. Varnado v. Lynaugh, 920
F.2d 320, 321 (5th Cir. 1991).       Taylor has not pled facts sufficient to
demonstrate, if true, that the defendants disregarded an excessive risk to his
health. See Farmer, 511 U.S. at 837. The judgment of the district court is
AFFIRMED. Taylor’s motion for summary judgment by default is DENIED.




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