Sanchez-Montoya v. Pratt, 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this opinion should not be published and is not precedent except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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-10937
Conference Calendar
JOSE SANCHEZ-MONTOYA,
Plaintiff-Appellant,
versus
SAM PRATT, Warden; GORDON TRUEBLOOD, Health Services
Administrator; UNKNOWN OPTOMETRIST; UNKNOWN PHYSICIAN'S
ASSISTANTS,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:98-CV-2528-P
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April 12, 2000
Before WIENER, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
Jose Sanchez-Montoya (#59425-065), a federal prisoner, has
appealed the district court's order granting summary judgment in
favor of the defendants and dismissing his Bivens action. See
Bivens v. Six Unknown Named Agents of the Federal Bureau of
Narcotics, 403 U.S. 388 (1971). The pleadings and summary
judgment evidence reflect that one physician thought surgery was

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No. 99-10937
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indicated for Sanchez' eye condition and that another physician
disagreed and thought the condition could be managed with
medication.
Under Bivens, a victim who has suffered a constitutional
violation by a federal actor can recover damages in federal
court. Bivens, 403 U.S. at 395-97. The Eighth Amendment
proscribes medical care that is “sufficiently harmful to evidence
deliberate indifference to serious medical needs.” Estelle v.
Gamble, 429 U.S. 97, 106 (1976). A prison official acts with
deliberate indifference “only if he knows that inmates face a
substantial risk of serious harm and disregards that risk by
failing to take reasonable measures to abate it.” Farmer v.
Brennan, 511 U.S. 825, 847 (1994). Unsuccessful medical
treatment, negligence, or medical malpractice do not constitute
deliberate indifference. Varnado v. Lynaugh, 920 F.2d 320, 321
(5th Cir. 1991). Sanchez' “[d]isagreement with [his] medical
treatment does not state a claim for Eighth Amendment
indifference to medical needs.” Norton v. Dimazana, 122 F.3d
286, 292 (5th Cir. 1997).
Defendants Pratt and Trueblood were sued because they
refused to overrule the decisions of the prison medical staff.
Supervisory officials sued under § 1983 are not vicariously
liable for the actions of their subordinates. Thompkins v. Belt,
828 F.2d 298, 303 (5th Cir. 1987). A supervisor will have
personal liability only if he is personally involved in the
constitutional deprivation, or if there is a sufficient causal
connection between the supervisor's conduct and the violation.

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No. 99-10937
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Id. at 304. Sanchez does not contend that Pratt or Trueblood
were personally involved in his medical treatment or that there
was some other causal connection between their actions and a
constitutional deprivation.
Sanchez' appeal is without arguable merit. See Howard v.
King, 707 F.2d 215, 219-20 (5th Cir. 1983). Accordingly, the
appeal is DISMISSED as frivolous. See 5TH CIR. R. 42.2.
Sanchez is advised that the dismissal of this appeal counts
as a "strike" pursuant to 28 U.S.C. § 1915(g). Sanchez is
CAUTIONED that, if he accumulates three "strikes," he will not be
permitted to 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).
APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING ISSUED.

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