Case: 13-10300       Document: 00512416816         Page: 1     Date Filed: 10/23/2013




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

                                                                            FILED
                                                                         October 23, 2013
                                     No. 13-10300
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

JERRY THOMPSON,

                                                  Plaintiff-Appellant

v.

DOCTOR ROBERT P. HAYES; UNITED STATES DEPARTMENT OF JUSTICE
BUREAU OF PRISONS,

                                                  Defendants-Appellees


                   Appeals from the United States District Court
                        for the Northern District of Texas
                              USDC No. 1:12-CV-37


Before OWEN, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
       Jerry Thompson, federal prisoner # 22869-077, moved for leave to proceed
in forma pauperis (IFP) to appeal from the dismissal as frivolous of his civil
complaint based on the medical care he received in prison, which the district
court construed as arising under 42 U.S.C. § 1983. As to the sole substantive
constitutional claim sufficiently briefed for appeal, because Thompson is a
federal prisoner suing over his medical care in a federal prison, we construe the


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 13-10300

claim as arising under Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 

 (1971).
      First, Thompson contends that the district court erred by dismissing his
complaint as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) because he paid
the filing fee. Thompson is correct that dismissal under § 1915(e)(2)(B)(i) was
inappropriate. That section applies only to litigants proceeding IFP. Bazrowx
v. Scott, 

, 1054 (5th Cir. 1998). However, under 28 U.S.C.
§ 1915A(b)(1), the district court is required to review any civil complaints in
which a prisoner seeks relief against a government entity, officer, or employee
regardless of whether the prisoner has paid the filing fee. Ruiz v. United States,

, 274-75 (5th Cir. 1998). Both § 1915(e)(2)(B)(i) and § 1915A(b)(1)
direct district courts to dismiss a complaint that is frivolous. A frivolous claim
has no “arguable basis in law or fact.” Berry v. Brady, 

, 507 (5th
Cir. 1999) (internal quotation marks and citation omitted). The distinction
between the two provisions for purposes of Thompson’s case is the standard of
review under which we review the district court’s order of dismissal. This court
reviews the dismissal of a complaint as frivolous under § 1915(e)(2)(B) for abuse
of discretion and the dismissal of a complaint under § 1915A(b) de novo. Geiger
v. Jowers, 

, 373 (5th Cir. 2005). If the district court’s order passes
muster under the de novo standard applicable to a § 1915A dismissal, then the
district court’s error in applying § 1915(e)(2)(B)(i) is harmless.
      Second, Thompson argues that Dr. Robert P. Hayes was deliberately
indifferent to his serious medical needs, resulting in his deformed finger. He
asserts that it is impossible without discovery to ascertain the actions of
Dr. Hayes or anybody involved in hiring Dr. Hayes or scheduling medical
appointments.
      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

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                                  No. 13-10300

infliction of pain. Estelle v. Gamble, 

, 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, 

,
837 (1994).
      Unsuccessful treatment, medical malpractice, and acts of negligence do not
constitute deliberate indifference; nor does a prisoner’s disagreement with his
medical treatment, absent exceptional circumstances. Gobert v. Caldwell, 

, 346 (5th Cir. 2006). “Rather, the plaintiff must show that the 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.” Domino v. Texas Dep’t of
Criminal Justice, 

, 756 (5th Cir. 2001) (internal quotation marks
and citation omitted).
      The complaint and the testimony at the hearing pursuant to Spears v.
McCotter, 

 (5th Cir. 1985), indicated that Dr. Hayes operated on
Thompson’s finger and saw Thompson several times in subsequent weeks.
Dr. Hayes and prison staff treated Thompson’s infection with antibiotics. The
unsatisfactory outcome did not reflect deliberate indifference. See Gobert, 463
F.3d at 346. To the extent Thompson raised a deliberate indifference claim in
the district court, that claim lacked a legal and factual basis and was frivolous.
See Berry, 192 F.3d at 507. The complaint was correctly dismissed as frivolous
as to the Bivens claim. See § 1915A(b)(1).
      Third, Thompson contends that the magistrate judge should have allowed
him to amend his complaint to allege a claim against Dr. Hayes in his capacity
as a government employee independent of the claim dismissed pursuant to
§ 1915A. Thompson may be seeking to raise a claim under the Federal Tort
Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671-80, but he has failed to brief any of

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                                  No. 13-10300

the issues that would be relevant to such a claim. See Brinkmann v. Dallas
County Deputy Sheriff Abner, 

, 748 (5th Cir. 1987). To the extent
Thompson believes he should have been allowed to amend the complaint to state
a Bivens claim against Dr. Hayes in his official capacity, such an amendment
would be futile in light of the disposition of the Bivens claim as to Dr. Hayes in
his individual capacity.
      Fourth, Thompson contends that the magistrate judge erred by counting
the dismissal of the complaint as a strike pursuant to 28 U.S.C. § 1915(g)
because he paid the filing fee and did not proceed IFP. Thompson’s contention
is unavailing. Section 1915(g) bars a prisoner from proceeding IFP in any civil
action or appeal if he has, on three or more occasions while incarcerated,
“brought an action or appeal in a court of the United States that was dismissed
on the grounds that it is frivolous, malicious, or fails to state a claim on which
relief may be granted, unless the prisoner is under imminent danger of serious
physical injury.” § 1915(g). The statute does not distinguish between IFP
actions or appeals and paid actions or appeals. The dismissal of Thompson’s
paid complaint thus counts as a strike.
      Morever, Thompson’s appeal is frivolous because his Bivens argument is
without legal merit. See Talib, 138 F.3d at 213. The dismissal of this appeal
counts as a strike against Thompson. See Adepegba v. Hammons, 

,
388 (5th Cir. 1996). Thompson therefore has two strikes, and he is cautioned
that, should he accumulate 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).
      IFP DENIED; APPEAL DISMISSED; 28 U.S.C. § 1915(g) SANCTION
WARNING ISSUED.




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