     Case: 10-30444 Document: 00511339501 Page: 1 Date Filed: 01/04/2011




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

                                                 FILED
                                                                           January 4, 2011
                                     No. 10-30444
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

JASEN DUNNELL GINS, also known as Jasen Dunnell Gins,

                                                   Plaintiff-Appellant

v.

DEPUTY WARDEN PAITETTE,

                                                   Defendant-Appellee


                    Appeal from the United States District Court
                       for the Western District of Louisiana
                              USDC No. 3:09-CV-110


Before JOLLY, GARZA and STEWART, Circuit Judges.
PER CURIAM:*
       Jasen Dunnell Gins, Louisiana prisoner # 469895, sued several prison
officials under 42 U.S.C. § 1983 asserting that a delay in his medical treatment
for an ankle injury violated the Eighth Amendment.                      The district court
dismissed his claims against most of the defendants as frivolous, leaving only his
claim against the deputy warden of his prison. Both the deputy warden and
Gins moved for summary judgment.                The district court granted summary
judgment in favor of the defendant and denied Gins’s motion. The court also

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-30444

denied Gins’s motion for leave to proceed in forma pauperis (IFP) on appeal,
certifying that the appeal was not taken in good faith. Gins seeks this court’s
leave to proceed IFP.
      Gins fails to make any coherent argument in support of his IFP motion.
A de novo review of the record reveals that the defendant directed that Gins wait
overnight to be transported to a hospital for treatment of his ankle injury despite
a nurse’s initial recommendation that he be taken to the hospital that night.
The delay was caused by the need to transport another prisoner to the
emergency room whose “radial and Brachial pulses were not palpable” due to a
suspected spider bite that had swollen his arm from wrist to elbow. The nurse
spoke to the defendant at length about the need for Gins to go to the hospital
that night because the nurse was concerned that he was suffering from
Compartment Syndrome or Deep Vein Thrombosis. Though the nurse voiced
concern about the urgency of the situation, she was reassured by the defendant’s
promise that Gins would be transported to the hospital the following morning
and decided that transportation to the hospital the next day was acceptable
treatment for Gins’s medical condition.
      The following day, Gins was transported to the hospital in stable condition
in the prison’s van. Following x-rays, he was diagnosed with a sprained ankle
and discharged. He returned to the prison the same day in stable condition.
After reviewing Gins’s medical records, the prison’s physician stated in an
affidavit that treatment a day earlier “would not have shown any different
medical outcome.” An MRI taken several weeks later indicated that Gins had
a “very subtle stress fracture” to one of the bones in his ankle. The test showed
that “some minimal joint fluid [was] present,” but “no other abnormality [was]
noted.”
      In light of the foregoing, the record evidence creates no genuine issue of
material fact as to whether (1) the defendant was deliberately indifferent to a
serious medical need of Gins’s or (2) substantial harm resulted from the delay

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                                  No. 10-30444

in treatment. Accordingly, the defendant was entitled to judgment as a matter
of law. See Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993); F ED. R. C IV.
P. 56(c)(2). Gins fails to demonstrate that he will raise a nonfrivolous issue;
therefore, the motion to proceed IFP is DENIED. See Howard v. King, 707 F.2d
215, 220. (5th Cir. 1983). The appeal is DISMISSED because it lacks arguable
merit and is frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 & n.24 (5th Cir.
1997); 5 TH C IR. R. 42.2. The dismissal of this appeal 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). Gins is WARNED that, once he accumulates three strikes, he
may not proceed 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).




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