     Case: 13-30132       Document: 00512329716         Page: 1     Date Filed: 08/02/2013




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

                                                                            FILED
                                                                           August 2, 2013
                                     No. 13-30132
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

NOLAN C. DAVIS, SR.,

                                                  Plaintiff-Appellant

v.

BURT MICHOT; WARDEN MCCAIN; WARDEN SLAY,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                              USDC No. 1:12-CV-19


Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM:*
       Proceeding pro se and in forma pauperis, Nolan C. Davis, Sr., Louisiana
prisoner # 222989, appeals the district court’s dismissal of his 42 U.S.C. § 1983
complaint for failure to state a claim on which relief may be granted under 28
U.S.C. § 1915(e)(2)(B)(ii). Davis alleged that he was subjected to cruel and
unusual punishment in violation of the Eighth Amendment while he was
incarcerated at the J. Levy Dabadie Correctional Center in Pineville, Louisiana,
and he named as defendants the director of nursing, Burt Michot, and Wardens

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 13-30132

McCain and Slay. He specifically alleged that Michot acted with deliberate
indifference to his serious medical needs by failing to provide him with timely
medical treatment for what was eventually diagnosed as appendicitis.
      A district court is directed to dismiss a claim if it is frivolous or fails to
state a claim upon which relief may be granted. 28 U.S.C. §§ 1915A(b)(1) &
1915(e)(2)(B). We review de novo the district court’s dismissal of Davis’s civil
rights complaint using the same standard applicable to dismissals under Federal
Rule of Civil Procedure 12(b)(6). See Rogers v. Boatright, 709 F.3d 403, 407 (5th
Cir. 2013); Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005). “Under that
standard, a complaint fails to state a claim upon which relief may be granted
when it does not contain ‘sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.’” Rogers, 709 F.3d at 407 (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
      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.” See Estelle v. Gamble, 429 U.S. 97, 104-05 (1976) (internal
quotations and citation omitted).       A prison official acts with deliberate
indifference if 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); see Reeves v. Collins,
27 F.3d 174, 176-77 (5th Cir. 1994) (applying Farmer to medical care claim). To
show deliberate indifference, Davis must submit evidence that the defendants
refused to treat him, purposefully gave him improper treatment, ignored his
medical complaints, “or engaged in any similar conduct that would clearly evince
a wanton disregard for any serious medical needs.” Gobert v. Caldwell, 463 F.3d
339, 346 (5th Cir. 2006) (internal quotation marks and citation omitted).



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                                  No. 13-30132

      He has failed to do so. According to Davis’s complaint, Michot examined
Davis within one hour of his initial sick call request, performed lab work, and
arranged for Davis to be examined by a physician, who subsequently diagnosed
Davis with appendicitis and ordered that he be transferred to the hospital. Even
if, as Davis alleges, Michot initially misdiagnosed him and did not schedule the
appointment with the doctor until more than ten days later, those allegations,
without more, do not rise to the level of a constitutional violation. See Mendoza
v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993) (holding that a delay in medical
care violates the Eighth Amendment only if it is due to deliberate indifference
and results in substantial harm); Varnado v. Lynaugh, 920 F.2d 320, 321 (5th
Cir. 1991) (noting that unsuccessful medical treatment, negligence, neglect, and
medical malpractice do not give rise to a § 1983 action).
      Thus, because Davis has failed to state a plausible claim that the
defendants were deliberately indifferent to his medical needs, see Rogers, 709
F.3d at 410; Gobert, 463 F.3d at 346, the judgment of the district court is
affirmed. The district court’s dismissal of the complaint under § 1915(e)(2)(B)(ii)
counts as a strike for purposes of 28 U.S.C. § 1915(g).         See Adepegba v.
Hammons, 103 F.3d 383, 387 (5th Cir. 1996). Davis has two prior strikes under
§ 1915(g). See Davis v. Smith, No. 1:11-cv-01676 (W.D. La. Apr. 16, 2012); Davis
v. Gusman, No. 2:09-cv-07195 (E.D. La. Apr. 28, 2010). Because he has now
accumulated at least three strikes, he may not proceed in forma pauperis in any
civil action or appeal while he is incarcerated or detained in any facility unless
he is under imminent danger of serious physical injury. See § 1915(g).
      AFFIRMED; SANCTION IMPOSED.




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