     Case: 10-11094       Document: 00512064558         Page: 1     Date Filed: 11/27/2012




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

                                                                            FILED
                                                                        November 27, 2012
                                     No. 10-11094
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

GARY GAINES,

                                                  Plaintiff-Appellant

v.

UNITED STATES; FEDERAL BUREAU OF PRISONS; MEDICAL DIRECTOR
FOR THE FEDERAL BUREAU OF PRISONS; WARDEN AND STAFF OF FCI
BIG SPRINGS; K. EDENFIELD, Warden; A. MARTINEZ, Health Services
Director; JORGE PARTIDA, Clinical Director; DRUG SUPPLIERS OF
INMATES; PSYCHOLOGICAL DEPARTMENT; MRS. TUBBS,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 1:09-CV-223


Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Gary Gaines, federal prisoner # 29031-177, appeals the dismissal as
frivolous of his civil rights action filed pursuant to Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).                         He
consented to proceed before a magistrate judge, who dismissed the complaint


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-11094

pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and § 1915A(b)(1). “A complaint is
frivolous if it lacks an arguable basis in law or fact.” Berry v. Brady, 192 F.3d
504, 507 (5th Cir. 1999).      We review a dismissal of a complaint under
§ 1915A(b)(1) de novo, while a dismissal under § 1915(e)(2)(B)(i) is reviewed for
abuse of discretion. Green v. Atkinson, 623 F.3d 278, 279–80 (5th Cir. 2010);
Berry, 192 F.3d at 507.
      Gaines asserts that various defendants committed deliberate indifference
by depriving him of his heart medications on four separate occasions. The
magistrate judge determined that these allegations sounded in negligence, which
does not rise to the level of deliberate indifference. See Gobert v. Caldwell, 463
F.3d 339, 346 (5th Cir. 2006). Gaines was required to establish “deliberate
indifference” to his “serious medical needs,” constituting an “unnecessary and
wanton infliction of pain.” Wilson v. Seiter, 501 U.S. 294, 297 (1991) (internal
quotation marks and citation omitted). We have held that a prison employee’s
refusal to provide prescribed medication when an inmate with known heart
problems complained of chest pain rose to the level of deliberate indifference.
See Easter v. Powell, 467 F.3d 459, 463-65 & n.25 (5th Cir. 2006). Therefore,
Gaines’s allegations are not “based on an indisputably meritless legal theory” or
on “clearly baseless” facts. Berry, 192 F.3d at 507.
      Additionally, Gaines asserts that he suffered from deliberate indifference
when he injured his ankle by falling into a crack or pothole in the pavement; he
alleged in the district court that the prison administration had been made aware
of the dangerous condition but did nothing to remedy the problem. Gaines had
a duty to show that officials knew of the risk of harm but disregarded that risk
by failing to undergo abatement procedures. See Gobert, 463 F.3d at 346. He
has made such a showing through the allegations in his complaint and at his
hearing pursuant to Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985), and we
accept those assertions as true. See Green, 623 F.3d at 280.



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                                  No. 10-11094

      The remaining claims set forth by Gaines are insufficient to establish a
constitutional violation cognizable in a Bivens action. Although he asserts that
the defendants stopped his Prozac prescription to retaliate against him for filing
a grievance, he has failed to satisfy his burden of establishing causation, and his
personal belief that retaliation was the cause for the canceled prescription is
insufficient. See Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997); Woods
v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995). Although Gaines asserts that the
defendants did not act in a timely manner in treating the ankle that he injured
when he tripped and fell, he has not shown that the delay in treatment resulted
in substantial harm. See Easter, 467 F.3d at 464. Gaines’s allegations that
prison overcrowding has led to delays in medical and dental treatment are
insufficient to establish a constitutional violation. See id.
      Gaines does not repeat his assertions, made in the district court, that
prison overcrowding caused him to miss several meals. Additionally, he does not
challenge the magistrate judge’s conclusion that Gaines’s official capacity claims
are not cognizable in a Bivens action and that several defendants should be
dismissed because they are challenged solely in their supervisory capacities.
Although pro se briefs are afforded liberal construction, see Haines v. Kerner, 404
U.S. 519, 520 (1972), even pro se litigants must brief arguments in order to
preserve them. Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
      Consequently, the magistrate judge’s judgment is REVERSED with
respect to Gaines’s assertions that he was deprived of his heart medications and
his allegation that the prison administration evinced deliberate indifference by
failing to remedy a known problem relating to the cracks or potholes in the
pavement. The case is REMANDED for further proceedings on these claims. In
all other respects, the judgment is AFFIRMED.




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