     Case: 13-40709      Document: 00512498653         Page: 1    Date Filed: 01/13/2014




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

                                                                                    FILED
                                      No. 13-40709                           January 13, 2014
                                                                               Lyle W. Cayce
JASON W. WITT,                                                                      Clerk


                                                 Plaintiff-Appellant

v.

CHARLES BELL, Senior Warden; MARK ROBERTS, Medical Practice
Manager University of Texas Medical Branch; STEPHEN MARTIN, LVN at
University of Texas Medical Branch; AMANDA WHITE, LVN at University of
Texas Medical Branch; JOYCE FRANCES, LVN at University of Texas
Medical Branch; THOMAS MACIEL, Registered Nurse at University of Texas
Medical Branch,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                              USDC No. 9:13-CV-55


Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM: *
       Jason W. Witt, Texas prisoner # 1087676, moves to proceed in forma
pauperis (IFP) and for appointment of counsel to appeal the dismissal of his 42
U.S.C. § 1983 suit alleging Eighth Amendment violations as frivolous and for



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-40709       Document: 00512498653     Page: 2   Date Filed: 01/13/2014


                                   No. 13-40709

failure to state a claim pursuant to 28 U.S.C. § 1915A(b)(1). Witt alleged that
medical personnel were deliberately indifferent to his serious medical needs
after he fractured his big toe.
      By moving to proceed IFP in this court, Witt is challenging the district
court’s certification. See Baugh v. Taylor, 117 F.3d 197, 202 & n.24 (5th Cir.
1997). This court’s inquiry into a litigant’s good faith “is limited to whether
the appeal involves legal points arguable on their merits (and therefore not
frivolous).”   Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal
quotation marks and citation omitted). In addition, when the trial court’s
certification decision is inextricably intertwined with the merits of the case,
this court may dispose of the appeal on its merits. Baugh, 117 F.3d at 202
n.24; 5TH CIR. R. 42.2
      Section 1915A(b)(1) directs a district court to dismiss a prisoner’s civil
rights complaint if it “is frivolous, malicious, or fails to state a claim upon
which relief may be granted.” When a district court dismisses a complaint as
both frivolous and for failure to state a claim, as herein, this court’s review is
de novo. See Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005). With respect
to failure to state a claim, “a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citation
omitted). A claim is facially plausible if the plaintiff pleads facts that allow a
court “to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id.
      The essence of Witt’s deliberate indifference claim is that the appellees
acted with reckless disregard for his serious medical condition when they
intentionally denied or delayed his access to care provided by a physician. Witt
also takes issue with the magistrate judge’s characterization of his



                                         2
    Case: 13-40709     Document: 00512498653      Page: 3    Date Filed: 01/13/2014


                                   No. 13-40709

constitutional claim as one of a mere disagreement with the care he was given;
he instead contends that his claim is one of deliberate indifference on account
of the prolonged delay of care caused by individuals who were not medically
qualified to treat a broken toe.
      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, which amounts to an unnecessary and
wanton infliction of pain. Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). A
prison official shows deliberate indifference if “the official 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).
      Witt has failed to plead facts that would allow a court to draw the
reasonable inference that any of the appellees are liable for deliberate
indifference to his serious medical needs. See Iqbal, 556 U.S. at 678. The facts
as pleaded and deemed true establish that Witt was seen by medical personnel
on four occasions over roughly a two-week period and was provided with over-
the-counter pain relief, as well as a treatment plan that he allow the toe to heal
on its own. Nothing in his medical records indicates that his injury was so
serious or that his pain was so severe that it posed a risk to his health or safety.
Regarding the seriousness of his medical condition, x-rays revealed that he had
sustained a nondisplaced fracture that was well aligned and that callus
formation had begun. This diagnostic impression does not suggest an injury
that posed an excessive risk to inmate health. See Farmer, 511 U.S. at 837.
Witt contends that the two-week delay in receiving the x-ray constituted
deliberate indifference; however, such a delay in treatment rises to the level of



                                         3
    Case: 13-40709       Document: 00512498653    Page: 4    Date Filed: 01/13/2014


                                  No. 13-40709

a constitutional violation only when the delay has resulted in substantial
harm. See Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993). The
medical records refute such a conclusion insofar as Witt was observed to have
“ambulated from the clinic without difficulty” following the x-ray and despite
the fracture.
      Witt’s allegations are, at most, allegations of medical malpractice that
are premised on medical examinations performed by nurses who did not have,
in his opinion, the requisite medical knowledge to treat a broken toe. Such
allegations of negligence do not rise to the level of a constitutional violation.
See Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006). The district court
did not err in dismissing his suit for failure to state a claim. See § 1915A(b)(1).
      In view of the foregoing, Witt’s appeal is without arguable merit and is
thus frivolous.   See Howard, 707 F.2d at 219-20.           Because the appeal is
frivolous, it is dismissed. 5TH CIR. R. 42.2. Witt’s motions for appointment of
counsel and to proceed IFP motion are denied. The district court’s judgment
dismissing the complaint for failure to state a claim counts as a strike for
purposes of 28 U.S.C. § 1915(g), as does the dismissal, as frivolous, of the
instant appeal. See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996).
Witt is warned that if he accumulates three strikes, he will not be able to
proceed IFP 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).
      IFP MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED; MOTION TO APPOINT COUNSEL DENIED.




                                        4
