Case: 12-20778       Document: 00512413333         Page: 1     Date Filed: 10/18/2013




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

                                                                            FILED
                                                                         October 18, 2013
                                     No. 12-20778
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

THOMAS RAY PENNINGTON,

                                                  Plaintiff-Appellant

v.

BRAD LIVINGSTON, Executive Director; DR. BEN RAIMER, University of
Texas Medical Branch Correctional Manager; DR. K. CARPIN; DR. EUGENE
J. FONTENOT, JR.; DR. FAUSTO AVILA; S. ABKE, Practice Manager;
DR. ROBYN L. CROWELL; DR. DENNIS C. GORE; DR. E. URIBE-BUSTILLO;
DR. SARA MICHELLE JOHNSON; DR. PAUL CLAUNCH BRINDLEY;
DR. MYERS,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:12-CV-46


Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
       Thomas Ray Pennington, Texas prisoner # 531216, appeals the district
court’s dismissal of his 42 U.S.C. § 1983 complaint pursuant to 28 U.S.C.
§§ 1915(e)(2)(B) for failure to state a claim upon which relief may be granted.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-20778     Document: 00512413333      Page: 2     Date Filed: 10/18/2013

                                  No. 12-20778

We review the dismissal of his complaint de novo, accepting the facts alleged in
the complaint as true and viewing them in the light most favorable to the
plaintiff. See Green v. Atkinson, 

, 280 (5th Cir. 2010).
      Pennington asserts that various prison officials and physicians were
deliberately indifferent to his serious medical needs by failing to provide surgery
to remove a mass growing on one of his legs. A prison official acts with
deliberate indifference if he “knows of and disregards an excessive risk to inmate
health or safety.” Farmer v. Brennan, 

, 837 (1994). In the context
of medical treatment, the prisoner must show “that prison officials refused to
treat him, ignored his complaints, intentionally treated him incorrectly, or
engaged in any similar conduct that would clearly evince a wanton disregard for
any serious medical needs.” Gobert v. Caldwell, 

, 346 (5th Cir.
2006) (internal quotation marks and citation omitted). However, “unsuccessful
medical treatment and acts of negligence or medical malpractice do not
constitute deliberate indifference, nor does a prisoner’s disagreement with [his]
medical treatment, absent exceptional circumstances.” Sama v. Hannigan, 

, 590 (5th Cir. 2012). Pennington’s own pleadings allege that he has
received a number of medical examinations and that there is a disagreement
amongst the physicians about whether he is a good candidate for surgery. “[T]he
decision whether to provide additional treatment is a classic example of a matter
for medical judgment.” See Domino v. Texas Dept. of Criminal Justice, 

, 756 (5th Cir. 2001) (internal quotation marks and citation omitted). As
Pennington’s claims are based on a disagreement over his course of treatment,
he has failed to state a claim for deliberate indifference.
      The district court dismissed Pennington’s complaint with prejudice for
failure to state a claim pursuant to § 1915(e)(2)(B)(ii). Pennington argues that
the district court should have provided him an opportunity to amend, or
dismissed his complaint without prejudice. However, Pennington was given an
opportunity to cure the inadequacies in his pleading through the district court’s

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                                 No. 12-20778

use of a questionnaire in the nature of a motion for more definite statement. See
Eason v. Thaler, 

, 9 (5th Cir. 1994). Therefore, he cannot show that the
district court abused its discretion in dismissing his complaint with prejudice.
      AFFIRMED.




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