     Case: 11-40153        Document: 00511746739      Page: 1     Date Filed: 02/03/2012




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

                                                                            FILED
                                                                         February 3, 2012
                                       No. 11-40153
                                     Summary Calendar                      Lyle W. Cayce
                                                                                Clerk

EVERILDO GARCIA,

                                                   Plaintiff-Appellant

v.

FEDERAL BUREAU OF PRISONS; UNIVERSITY OF TEXAS MEDICAL
BRANCH; JOHN B. FOX, Warden; JOHN DOE, #1 - #50,

                                                   Defendants-Appellees


                       Appeal from the United States District Court
                            for the Eastern District of Texas
                                 USDC No. 1:08-CV-607


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
          Proceeding pro se and in forma pauperis, Everildo Garcia, federal prisoner
# 40677-018, appeals the dismissal of his Bivens1 action and 42 U.S.C. § 1983




          *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
          1
              Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971).
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                                         No. 11-40153

complaint as frivolous and for failure to state a claim, pursuant to 28 U.S.C.
§ 1915(e)(2)(B) and § 1915A(b). We review the dismissal de novo.2
       Garcia argues that his allegations establish official conduct that meets the
standard of deliberate indifference.3 Garcia contends that he filed sick call
requests and administrative remedy requests and that all of the defendants were
well aware of his eye condition. He states that his condition was also evidenced
by his many trips to the hospital and medical procedures performed. He asserts
that the prison medical staff was aware of his need for medications, which were
prescribed but not provided promptly. He argues that these delays were the
fault of prison staff, hindered his recovery, and caused him permanent damage.
He complains of the lack of timely treatment, timely dispensing of prescribed
medications, and proper diagnosis of his ailment. Garcia also contends that
Warden Fox, in his individual capacity, was “made personally aware of the
medical negligence.”         But Garcia’s use of the term “negligence” belies his
contention that his allegations meet the deliberate indifference standard,4 which
this Circuit has described as an “extremely high standard to meet.”5
       The fact of delay in itself is not sufficient to establish deliberate
indifference.6 Garcia has not alleged that prison 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




       2
        See Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005); Black v. Warren, 134 F.3d 732,
733-34 (5th Cir. 1998).
       3
           See Estelle v. Gamble, 429 U.S. 97, 104-06 (1976).
       4
           See Mendoza v. Lynaugh, 989 F.2d 191, 193-94 (5th Cir. 1993).
       5
           Domino v. Tex. Dep’t of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001).
       6
           Mendoza, 989 F.2d at 195.

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                                            No. 11-40153

medical needs.’”7 The unexplained delays in dispensing medications constitute
negligence at most.8
          The defendants did not ignore or refuse to treat Garcia’s eye condition.
According to Garcia’s allegations, he was examined numerous times by several
doctors, made multiple trips to the hospital, was prescribed and provided
medication, and had two surgeries over the course of seven months. These facts
negate a conclusion of deliberate indifference.9 Also, regarding Warden Fox in
his individual capacity, Garcia’s argument does not refute the district court’s
determination that Warden Fox had no personal involvement in his medical
care.
          The district court did not err in dismissing Garcia’s complaint as frivolous
and for failure to state a claim.10 Likewise, Garcia’s appeal is without arguable
merit and is frivolous.11 Because the appeal is frivolous, it is dismissed.12
          The dismissal of this appeal as frivolous and the district court’s dismissal
as frivolous and for failure to state a claim each count as a strike for purposes
of 28 U.S.C. § 1915(g).13 We caution Garcia that once he accumulates three



          7
              Domino, 239 F.3d at 756 (quoting Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir.
1985)).
          8
        See Gobert v. Caldwell, 463 F.3d 339, 351-52 (5th Cir. 2006) (stating that “a trier of
fact might find negligence in the one week lapse in antibiotic treatment” but concluding that
mere negligence could not support a finding of deliberate indifference); Varnado v. Lynaugh,
920 F.2d 320, 321 (5th Cir. 1991) (per curiam).
          9
        See Banuelos v. McFarland, 41 F.3d 232, 235 (5th Cir. 1995); cf. Easter v. Powell, 467
F.3d 459, 463-64 (5th Cir. 2006) (holding that an allegation that a nurse “refused to provide
any treatment to, and ignored the complaints of, a patient suffering from severe chest pain
that she knew had a history of cardiac problems” met the deliberate indifference threshold).
          10
               See Black, 134 F.3d at 733-34; Geiger, 404 F.3d at 373.
          11
               See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).
          12
               See 5TH CIR. R. 42.2.
          13
               See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).

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                                       No. 11-40153

strikes, he may not 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.14
      APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING ISSUED.




      14
           See § 1915(g).

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