Williams v. Brinkan, et al

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
April 9, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
02-30994
Summary Calendar
ERIC W. WILLIAMS,
Plaintiff-Appellant,
versus
JOANN BRINKAN, Individually and in her official capacity;
PAM GIVINS, Individually and in her official capacity;
ALTON JACK, Individually,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Louisiana
(01-CV-1985)
Before BARKSDALE, DEMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Eric W. Williams, Louisiana inmate #117598, proceeding pro se
and in forma pauperis (“IFP”), appeals the dismissal of his 42
U.S.C. § 1983 complaint. Williams claimed defendants violated his
rights under the Eighth Amendment because they did not provide a
timely eye examination and delayed in transferring him to a unit
where he could receive such treatment. Williams contends the
district court erred by basing the dismissal of his complaint on

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the fact that Williams obtained an eye examination and a
prescription for eyeglasses.
We review a dismissal under FED. R. CIV. P. 12(b)(6) de novo.
Black v. Warren, 134 F.3d 732, 733-34 (5th Cir. 1998). The Eighth
Amendment’s prohibition against “cruel and unusual punishment”
protects an inmate from improper medical care only if the care is
“sufficiently harmful to evidence deliberate indifference to
serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106
(1976). Deliberate indifference is shown by “facts clearly
evincing ‘wanton’ actions” by the defendants. Johnson v. Treen,
759 F.2d 1236, 1238 (5th Cir. 1985).
Williams’ complaint demonstrates, at most, negligence and
disagreement with the medical care that he received. Unsuccessful
medical treatment, negligence, neglect, and medical malpractice do
not establish an Eighth Amendment violation. Varnado v. Lynaugh,
920 F.2d 320, 321 (5th Cir. 1991).
Williams’ appeal is without arguable merit and is frivolous.
It is therefore DISMISSED. 5TH CIR. R. 42.2; Howard v. King, 707
F.2d 215, 219-20 (5th Cir. 1983). The dismissal of this appeal and
the district court’s dismissal of Williams’ complaint count as
strikes under the Prison Litigation Reform Act. Adepegba v.
Hammons, 103 F.3d 383, 387 (5th Cir. 1996). Williams is WARNED
that if he accumulates three “strikes” under 28 U.S.C. § 1915(g) he
will not be able to proceed in forma pauperis in any civil action

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or appeal filed while he is incarcerated or detained in any
facility unless he is under imminent danger of serious physical
injury. 28 U.S.C. § 1915(g).
APPEAL DISMISSED, SANCTION WARNING ISSUED

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