     Case: 09-60481 Document: 00511497672 Page: 1 Date Filed: 06/03/2011




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

                                                 FILED
                                                                            June 3, 2011
                                     No. 09-60481
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

JOHN BARRETT,

                                                   Plaintiff-Appellant

v.

MISSISSIPPI DEPARTMENT OF CORRECTIONS; SOUTHERN MISSISSIPPI
CORRECTIONAL INSTITUTION; CHRISTOPHER EPPS; RONALD KING;
MEDICAL PROVIDERS; MARIO MARTIN, Officer; LADARRELL PERRY,
Officer,

                                                   Defendants-Appellees


                    Appeal from the United States District Court
                      for the Southern District of Mississippi
                              USDC No. 2:06-CV-271


Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
       John Barrett, Mississippi prisoner # 27578, moves for leave to proceed in
forma pauperis (IFP). The motion constitutes a challenge to the district court’s
certification that his appeal from a directed verdict in favor of defendants Epps,
King, Martin, and Perry was not taken in good faith. See Baugh v. Taylor, 117
F.3d 197, 202 (5th Cir. 1997). Our inquiry into whether this appeal is taken in

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-60481 Document: 00511497672 Page: 2 Date Filed: 06/03/2011

                                  No. 09-60481

good faith is limited to whether this appeal involves any nonfrivolous issues.
Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983).
      We previously granted Barrett provisional IFP status for purposes of
ordering a transcript of the bench trial in this lawsuit under 42 U.S.C. § 1983.
Now, after a review of the transcript, we withdraw the provisional grant of IFP,
deny Barrett’s IFP motion, and dismiss the appeal as frivolous.
      Barrett contends that there is a nonfrivolous issue as to whether Epps and
King violated his rights under the Eighth Amendment by knowingly delaying
and refusing medical treatment for a patella fracture and hernias. He asserts
that King and Epps disregarded doctor recommended hernia surgery and
unreasonably delayed surgery on his patella. Barrett argues that the evidence
adduced at the bench trial showed that King and Epps were aware of his
fracture and hernias, but failed to act to insure that he received medically
necessary treatment for those injuries. Because Barrett raises no argument
concerning Perry’s and Martin’s alleged violations of his constitutional rights,
he has abandoned any challenge to the district court’s certification decision
regarding those defendants. Brinkmann v. Dallas County Deputy Sheriff Abner,
813 F.2d 744, 748 (5th Cir. 1987).
      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.”   Estelle v. Gamble, 429 U.S. 97, 104-05 (1976) (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). A delay of medical care may



                                        2
    Case: 09-60481 Document: 00511497672 Page: 3 Date Filed: 06/03/2011

                                  No. 09-60481

constitute an Eighth Amendment violation. Easter v. Powell, 467 F.3d 459, 463
(5th Cir. 2006).
      Barrett has not shown that he will raise a nonfrivolous issue regarding
whether Epps and King were deliberately indifferent in denying and/or delaying
medical treatment for his leg and hernias. The record supports that the prison
medical staff made regular efforts to diagnose, treat, monitor, and control
Barrett’s injuries and that the treatment pursued by prison medical staff did not
have serious medical consequences or result in substantial harm to Barrett. See
id. To the extent that Barrett argues that the medical staff did not use the most
efficacious method of treatment (e.g., performing surgery on his leg and hernias
earlier), his disagreement with the care that he received does not establish a
claim of deliberate indifference. See Domino v. Texas Dep’t of Criminal Justice,
239 F.3d 752, 756 (5th Cir. 2001). Further, Barrett has not established that
either Epps or King, who occupied non-medical supervisory positions, was
involved in determining the medical treatment that he received or otherwise
interceded in his medical care; Barrett has not alleged or shown that King or
Epps was personally involved in delaying or denying his medical care or that
they played a role in treating him or in deciding a course of treatment for him.
See Thompkins v. Belt, 828 F.2d 298, 303-04 (5th Cir. 1987) (holding that
supervisory prison officials are liable under § 1983 only if they are personally
involved in the constitutional violation or there is a sufficient causal connection
between the supervisor’s wrongful conduct and the violation). Thus, Barrett has
failed to set forth facts or evidence establishing that King or Epps exhibited
deliberate indifference to his injuries.
      Barrett also contends that the district court improperly denied his request
to have subpoenas issued to potential witnesses; erroneously denied his motion
to amend his complaint to include additional defendants; failed to insure that
the defendants produced adequate discovery; and wrongly denied his motion for
a default judgment against Nurse Barton. He also asserts that prison officials

                                           3
     Case: 09-60481 Document: 00511497672 Page: 4 Date Filed: 06/03/2011

                                   No. 09-60481

failed to return his legal work before trial and denied him the opportunity to
present “habit evidence” that would have supported his claims. Barrett has not
established that these grounds for appeal involve legal points arguable on their
merits. See Howard, 707 F.2d at 220.
      Because Barrett has not shown that he will present any nonfrivolous issue
on appeal, his motion for leave to proceed IFP is denied, and this appeal is
dismissed as frivolous. See Baugh, 117 F.3d at 202 n.24; Howard, 707 F.2d at
220; 5 TH C IR. R. 42.2. Our dismissal of this appeal as frivolous 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). Because Barrett has at least two prior strikes, he is now
barred from proceeding 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 WITHDRAWN; IFP MOTION DENIED; APPEAL DISMISSED;
28 U.S.C. § 1915(g) BAR IMPOSED.




                                         4
