Case: 19-30250       Document: 00515463355         Page: 1     Date Filed: 06/23/2020




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

                                                                               FILED
                                                                            June 23, 2020
                                     No. 19-30250
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

LARRY LEWIS,

                                                  Plaintiff - Appellant

v.

JERRY GOODWIN; DOCTOR HEARNE; COL NAIL; DEBORAH CODY;
JOEL WILLIAMS; KAYLA SHERMAN,

                                                  Defendants - Appellees


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:18-CV-800


Before BARKSDALE, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Proceeding pro se and in forma pauperis (IFP), Larry Lewis, Louisiana
prisoner # 364402, challenges the dismissal, pursuant to 28 U.S.C. §§ 1915 and
1915A, of his 42 U.S.C. § 1983 complaint as frivolous and for failing to state a
claim upon which relief may be granted. He contends defendants violated his
Eighth Amendment right to be free from cruel and unusual punishment by



       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 19-30250

treating him with deliberate indifference when: placing him on a prison tier
without a shower accessible to people with disabilities; refusing to allow him
access to an accessible shower or to otherwise provide a chair or other
equipment to make a shower accessible; and denying him the use of a cane or
walker in his cell. (Even liberally construing Lewis’ brief, as required for pro
se appellants, Lewis has abandoned any other claims for failure to brief. Yohey
v. Collins, 

, 224–25 (5th Cir. 1993).)
      Sections 1915(e)(2)(B) and 1915A(b)(1) provide for the dismissal of a
prisoner’s IFP civil action if, inter alia, it is frivolous or fails to state a claim
upon which relief may be granted. 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b)(1).
Where, as in this instance, “a district court dismisses a complaint both as
frivolous and as failing to state a claim[,] . . . we review the dismissal de novo”.
Samford v. Dretke, 

, 678 (5th Cir. 2009) (per curiam) (italics
added) (citation omitted).
      In determining whether the complaint fails to state a claim, our court
“us[es] the same standard applicable to dismissals under Federal Rule of Civil
Procedure 12(b)(6)”. Rogers v. Boatright, 

, 407 (5th Cir. 2013)
(citation omitted). In that regard, “a complaint fails to state a claim upon
which relief may be granted when it does not contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face”.

marks and citation omitted). Along that line, “[a]llegations
of pro se complaints are held to less stringent standards than formal pleadings
drafted by lawyers”.

      “The Eighth Amendment’s prohibition against cruel and unusual
punishment requires prison officials to provide humane conditions of
confinement, ensuring that inmates receive adequate food, clothing, shelter,
and medical care . . . .” Palmer v. Johnson, 

, 351–52 (5th Cir.



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                                 No. 19-30250

1999) (internal quotation marks and citation omitted). To state an Eighth
Amendment claim based on prison conditions, plaintiff must show:              an
objective, and “sufficiently serious”, deprivation; and an official or officials
“act[ed] with deliberat[e] indifference to inmate health and safety”. Coleman
v. Sweetin, 

, 764 (5th Cir. 2014) (per curiam) (internal quotation
marks and citation omitted). Similarly, to state an Eighth Amendment claim
for inadequate medical care, plaintiff must show an official or officials acted
with “deliberate indifference to serious medical needs”. Estelle v. Gamble, 

, 104 (1976) (citation omitted).         Accordingly, “[w]hether one
characterizes the treatment received by [Lewis] as inhumane conditions of
confinement, failure to attend to his medical needs, or a combination of both,
it is appropriate to apply the deliberate[-]indifference standard”. Wilson v.
Seiter, 

, 303–04 (1991) (internal quotation marks and citations
omitted).
      “Deliberate indifference is an extremely high standard to meet.” Domino
v. Tex. Dep’t of Criminal Justice, 

, 756 (5th Cir. 2001). A prison
official acts with deliberate indifference only 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).
      Lewis’ contentions do not show that, even if defendants were aware of
any risk of harm, they consciously disregarded the risk by failing to take
reasonable measures to abate it. See

claims amount to a
disagreement with the opinions of medical personnel and with the medical
treatment he received, which is insufficient to state a deliberate-indifference




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                                  No. 19-30250

claim. See Gobert v. Caldwell, 

, 346 (5th Cir. 2006) (citations
omitted).
      The district-court dismissal of Lewis’ complaint counts as a strike
pursuant to 28 U.S.C. § 1915(g). Lewis is warned that, if he accumulates three
strikes, he will not be allowed 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”. 28 U.S.C. § 1915(g).
      AFFIRMED. SANCTION WARNING ISSUED.




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