               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 99-60059
                        (Summary Calendar)



DONALD O'BRYANT,

                                         Plaintiff-Appellant,

versus

ROBERT CULPEPPER; JOHN DONNELLY; LARRY HARDY,

                                         Defendants-Appellees.

                      --------------------
          Appeal from the United States District Court
            for the Southern District of Mississippi
                        (3:98-CV-220-BN)
                      --------------------
                           May 4, 2000

Before POLITZ, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

     Plaintiff-Appellant Donald O’Bryant has appealed the district

court's judgment dismissing his civil rights complaint for failure

to state a claim.   See 28 U.S.C. § 1915(e)(2)(B)(ii).   We review

such a dismissal under the same de novo standard as we employ when

reviewing dismissals under Fed. R. Civ. P. 12(b)(6).      Black v.

Warren, 134 F.3d 732, 733-34 (5th Cir. 1998).   We therefore “must

assume that all of the plaintiff’s factual allegations are true.

The district court’s dismissal may be upheld, only if it appears

that no relief could be granted under any set of facts that could


     *
       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this opinion should not be published and is not precedent except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.
be proven consistent with the allegations.”                    Bradley v. Puckett,

157 F.3d 1022, 1025 (5th Cir. 1998) (internal quotation marks and

citation omitted).

     The        Eighth     Amendment     proscribes       medical      care    that   is

“sufficiently       harmful     to     evidence      deliberate     indifference      to

serious medical needs.”               Estelle v. Gamble, 429 U.S. 97, 106

(1976).    Deliberate indifference encompasses only unnecessary and

wanton infliction of pain repugnant to the conscience of mankind.

Id. at 105-06.           Thus, a prison official acts with deliberate

indifference “only if he knows that inmates face a substantial risk

of serious harm and disregards that risk by failing to take

reasonable measures to abate it.”                 Farmer v. Brennan, 511 U.S. 825,

847 (1994).        Mere unsuccessful medical treatment, negligence, or

medical malpractice           are    insufficient       to   constitute       deliberate

indifference in and of themselves.                   Varnado v. Lynaugh, 920 F.2d

320, 321 (5th Cir. 1991).                 Furthermore, “[d]isagreement with

medical treatment does not state a claim for Eighth Amendment

indifference to medical needs.”               Norton v. Dimazana, 122 F.3d 286,

292 (5th Cir. 1997).

     "[P]rison work requirements which compel inmates to perform

physical labor which is beyond their strength, endangers their

lives,     or     causes     undue     pain       constitute   cruel     and    unusual

punishment."        Howard v. King, 707 F.2d 215, 219 (5th Cir. 1983).

Work that is not cruel and unusual per se may nevertheless violate

the Eighth Amendment if prison officials are aware that it will

"significantly aggravate" a prisoner's serious medical condition.


                                              2
Jackson, 864 F.2d at 1246.         Alone, however, purely negligent

assignment to work that is beyond the prisoner's physical abilities

is not unconstitutional.     Id.

     Although deliberate indifference may be established by showing

the delay or denial of appropriate medical care or through the

unnecessary infliction of pain, Estelle, 429 U.S. at 104, "delay in

medical care can only constitute an Eighth Amendment violation if

there    has   been   deliberate   indifference,   which    results   in

substantial harm."    Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir.

1993).    Although O’Bryant was injured on a Saturday and did not

receive treatment until the following Thursday, he cannot show that

the delay in treating his injury caused substantial harm.

     O'Bryant was allowed a “lay-in” following his injury during

which he was not required to work for at least four weeks.            He

indicates that defendant Dr. Robert Culpepper refused to give him

an additional lay-in after the initial four-week lay-in and treated

the condition with pain medication only.     These allegations state

a negligence claim only and do not establish that Dr. Culpepper was

deliberately indifferent to O'Bryant's medical condition.        Claims

against defendants Larry Hardy and John Donnelly, Jr. are waived

because O'Bryant failed to brief them on appeal.     See Brinkmann v.

Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.

1987).

     Contentions that the magistrate judge misstated O’Bryant’s

factual allegations and erred in refusing to permit him to consult

his notes during the Spears hearing are unavailing,        see Spears v.


                                   3
McCotter, 766 F.2d 179 (5th Cir. 1985).   There was no reversible

error. Convinced that "no relief could be granted under any set of

facts that could be proven consistent with the allegations,” see

Bradley, 157 F.3d at 1025, we affirm the district court's judgment

in all respects.

AFFIRMED.




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