     Case: 10-60345     Document: 00511261967          Page: 1    Date Filed: 10/13/2010




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

                                                 FILED
                                                                          October 13, 2010
                                     No. 10-60345
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

BOBBY TYRESE CLEMONS,

                                                   Plaintiff-Appellant

v.

RON KING; DOCTOR RON WOODALL; CHRISTOPHER EPPS; DOCTOR
CHARMAINE MCCLEAVE; APRIL MEGGS,

                                                   Defendants-Appellees


                    Appeal from the United States District Court
                      for the Southern District of Mississippi
                              USDC No. 2:09-CV-149


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
        Plaintiff-Appellant Bobby Tyrese Clemons, Mississippi prisoner # R1532,
seeks leave to proceed in forma pauperis (IFP) on appeal following the district
court’s certification pursuant to 28 U.S.C. § 1915(a)(3) that his appeal is taken
in bad faith. Clemons also seeks appointment of counsel.
        Clemons contends that the magistrate judge (MJ) erred procedurally in
denying him leave to proceed IFP on appeal, claiming that the MJ erred by


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-60345    Document: 00511261967 Page: 2       Date Filed: 10/13/2010
                                 No. 10-60345

relying on his order granting summary judgment and his own subjective
determination of what constitutes a claim brought in good faith.        Clemons
asserts that the MJ should have applied objective standards to his claims to
determine whether his appeal is brought in good faith. He also urges that the
MJ should not have certified his appeal as taken in bad faith without first
appointing counsel to represent him. Clemons further contends that the MJ
erred in denying him leave to proceed IFP on appeal when the MJ failed to apply
the correct analytical framework to Clemons’s Federal Rule of Civil Procedure
59(e) motion. Our review satisfies us that the district court did not commit
procedural error in its § 1915(a)(3) certification.
      Clemons also claims that the MJ erred substantively in denying him leave
to proceed IFP on appeal because he raises claims that are of arguable merit.
He argues in conclusional fashion that summary judgment should have been
denied because he established the failure to receive treatment of a serious
medical need, namely, his broken finger, which he asserts received little
attention. Clemons insists that the dilatory response of higher ranking medical
personnel following a prison nurse’s discovery that he no longer could use his
finger violated his Eighth Amendment rights. He alleges that he was denied the
opportunity to see an outside specialist because medical officials did not forward
his x-ray and other information to a specialist as requested, directing our
attention to his original complaint and the district court record.
      In his brief for appointment of counsel, Clemons alleges that he was
approved for a visit to an outside orthopedic specialist in May 2009, but that he
has never seen that specialist. He further alleges that he did not learn of the
May 2009 approval until he received the MJ’s order granting summary
judgment.
      Clemons may not brief an issue by reference to his pleadings in district
court. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). To the extent
he seeks to raise issues by reference to the original complaint and district court

                                         2
   Case: 10-60345    Document: 00511261967 Page: 3         Date Filed: 10/13/2010
                                 No. 10-60345

record, we need not consider any issues that are not raised in his appellate
submissions. See id.
      Clemons neither challenges the MJ’s factual findings nor claims that the
district court misinterpreted any of the evidence. Rather, he contends that delay
in treatment and failure to allow him to be seen by specialists on two occasions
violated the Eighth Amendment. Clemons has abandoned any challenge to the
MJ’s factual findings. See In re Municipal Bond Reporting Antitrust Litigation,
672 F.2d 436, 439 n.6 (5th Cir. 1982). On the facts found by the MJ, the district
court did not err by granting summary judgment for the defendants.
      We review de novo a grant of summary judgment. Cousin v. Small, 325
F.3d 627, 637 (5th Cir. 2003). Summary judgment is proper “if the pleadings,
the discovery and disclosure materials on file, and any affidavits show that there
is no genuine issue as to any material fact and that the movant is entitled to
judgment as a matter of law.” F ED. R. C IV. P. 56(c).
      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).
      Unsuccessful treatment, medical malpractice, and acts of negligence do not
constitute deliberate indifference; neither does a prisoner’s disagreement with
his medical treatment, absent exceptional circumstances. Gobert v. Caldwell,
463 F.3d 339, 346 (5th Cir. 2006). Only if a prisoner can establish deliberate
indifference to his serious medical needs may he recover damages for pain he
suffered during the delay of treatment. Easter v. Powell, 467 F.3d 459, 464-65

                                         3
   Case: 10-60345   Document: 00511261967 Page: 4        Date Filed: 10/13/2010
                                No. 10-60345

(5th Cir. 2006). To recover in such circumstances, however, the prisoner must
show that the denial or delay in medical treatment was the result of the
defendants’ deliberate indifference. Id.
      The evidence indicates that the prison medical staff was attentive to
Clemons’s fractured finger and that he received ongoing and frequent treatment.
The evidence does not reflect the presence of any genuine issues of material fact
as to whether the defendants were deliberately indifferent to a serious medical
need. See Gamble, 429 U.S. at 104-05. The MJ did not err in granting summary
judgment for the defendants. See Rule 56(c).
      As Clemons’s appeal does not involve legal points that are arguable on the
merits, see Howard, and his IFP motion is denied. See Baugh v. Taylor, 117 F.3d
197, 202 (5th Cir. 1997). Because disposition of Clemons’s challenge to the
magistrate judge’s certification order would require a merits resolution, his
appeal is dismissed as frivolous. See id.
      Our dismissal of this appeal as frivolous counts as a strike under 28 U.S.C.
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir.1996). We
caution Clemons that if he accumulates three strikes, he will not be permitted
to proceed IFP in any civil action or appeal filed while incarcerated or detained
in any facility unless he is under imminent danger of serious physical injury.
See § 1915(g). In light of the foregoing analysis, it is clear that Clemons has
failed to demonstrate exceptional circumstances warranting the appointment of
counsel. See Williams v. Ballard, 466 F.3d 330, 335 (5th Cir. 2006).
      IFP DENIED; APPEAL DISMISSED; APPOINTMENT OF COUNSEL
DENIED; SANCTION WARNING ISSUED.




                                        4
