     Case: 13-30898      Document: 00512622373         Page: 1    Date Filed: 05/07/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-30898
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                             May 7, 2014
STERLING J. BLADE,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellant

v.

TIMOTHY KEITH; DOCTOR ENGELSON; PAT THOMAS; NICOLE
WALKER,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:12-CV-1995


Before STEWART, Chief Judge, and JOLLY and SOUTHWICK, Circuit
Judges.
PER CURIAM: *
       Sterling J. Blade, Louisiana prisoner # 405748, appeals the district
court’s dismissal of his 42 U.S.C. § 1983 complaint pursuant to 28 U.S.C.
§§ 1915(e)(2)(B) and 1915A(b)(1) as frivolous and for failure to state a claim
upon which relief may be granted. In his complaint, Blade alleged that the



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 13-30898     Document: 00512622373     Page: 2   Date Filed: 05/07/2014


                                  No. 13-30898

defendants were deliberately indifferent to his serious medical needs based
upon a failed tooth extraction and an eight month delay in having the tooth
surgically removed.
      Blade argues that the district court erred by dismissing his complaint.
He maintains that Dr. Engelson deprived him of proper medical treatment by
aggravating the problem with his tooth by breaking the tooth under the gums.
He contends that the delay in having the tooth surgically removed was
unreasonable and that Dr. Engelson knew about the seriousness of the
problem. He contends that he told Warden Timothy Keith, Assistant Warden
Nicole Walker, and Medical Director Pat Thomas about the problem and that
they did not assist him.
      We review the dismissal of Blade’s complaint de novo. See Velasquez v.
Woods, 329 F.3d 420, 421 (5th Cir. 2003).        A claim may be dismissed as
frivolous if it does not have an arguable basis in fact or law. Gonzales v. Wyatt,
157 F.3d 1016, 1019 (5th Cir. 1998). A claim may be dismissed for failure to
state a claim upon which relief may be granted if, assuming all well pleaded
facts are true, the plaintiff has not pleaded “enough facts to state a claim to
relief that is plausible on its face.”   In re Katrina Canal Breaches Litig.,
495 F.3d 191, 205 (5th Cir. 2007) (internal quotation marks and citation
excluded).
      Blade’s allegations that Dr. Engelson did not use the proper anesthetics
before attempting to remove his tooth and that Dr. Engelson broke his tooth
below his gums without extracting it are insufficient to state a viable claim
because they show, at most, that Blade disagreed with the treatment provided
by Dr. Engelson and that Dr. Engelson may have committed malpractice or
provided ineffective treatment. See Stewart v. Murphy, 174 F.3d 530, 534
(5th Cir. 1999); Banuelos v. McFarland, 41 F.3d 232, 235 (5th Cir. 1995).



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                                 No. 13-30898

Blade’s allegations showed that he continued to receive treatment after the
failed extraction of his tooth as Dr. Engelson proscribed him pain medication
and antibiotics, and Dr. Engelson put him on the referral list for the LSU Oral
Surgery Clinic on three occasions. Thus, while Blade may have disagreed with
the treatment he received after the failed tooth extraction, he did not allege
that the defendants refused to provide him treatment.          Although Blade
asserted that it took too long for his tooth to be surgically removed, his
allegations showed that he was quickly put on the referral list for the LSU Oral
Surgery Clinic, and Blade did not allege that the defendants had any control
over how quickly a surgery could be scheduled with the LSU Oral Surgery
Clinic. Given these circumstances, Blade’s allegations did not rise to the level
of deliberate indifference to serious medical needs, and the district court did
not err by dismissing the complaint. See Stewart, 174 F.3d at 534-38.
      The district court’s dismissal of Blade’s complaint as frivolous and for
failure to state a claim counts as a strike for purposes of 28 U.S.C. § 1915(g).
See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996).            Blade 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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