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*Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 92-8241
(Summary Calendar)
GREGORY HOUSE,
Plaintiff-Appellant,
versus
DR. CATHY A. HURLEY,
Defendant-Appellee.
Appeal from the United States District Court
For the Western District of Texas
(W-91-CA-90)
(January 11, 1993)
Before KING, DAVIS and WIENER, Circuit Judges.
PER CURIAM:*
In this prisoner's civil rights case under 42 U.S.C. § 1983,
Plaintiff-Appellant Gregory House appeals the district court's
dismissal of his claim pursuant to Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim upon which relief may be

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1 Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
2
granted. Finding that the dismissal was proper as to House's claim
against Defendant-Appellee Dr. Cathy A. Hurley for deliberate
indifference constituting inadequate medical attention and
treatment, we affirm that part of the district court's order of
dismissal. Inasmuch as House's complaint contained allegations of
his being forced by unidentified persons, who were not made
defendants by House, to perform physical labor in violation of his
medical work restrictions, we vacate the order of dismissal in part
and remand to permit amendment of House's petition to name proper
parties defendant to those claims related to work related
violations.
I
FACTS AND PROCEEDINGS
House filed this prisoner's § 1983 action pro se only against
Dr. Cathy A. Hurley, the senior doctor at the A.D. Hughes Unit of
the Texas Department of Criminal Justice (TDCJ), alleging
inadequate medical attention and treatment for a lower back injury
which he sustained prior to incarceration. House alleged that
1) Dr. Hurley did not request his medical records regarding this
injury from the hospital where he had been treated, and 2) when he
asked Dr. Hurley to send him to an outside hospital for an
examination of his back, she stated that black people do not have
back problems.
The magistrate judge conducted a Spears1 hearing and
recommended that House's complaint be dismissed pursuant to

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Fed.R.Civ.P. 12(b)(6) because the allegations of the complaint and
the testimony and medical records presented at the Spears hearing
did not establish a claim of deliberate indifference. The district
court adopted the magistrate judge's report and dismissed the suit.
Neither the order nor the judgment indicates whether the dismissal
was with or without prejudice.
The Spears hearing revealed that House's back had been injured
in January of 1985 in an automobile accident. He was convicted and
sent to TDCJ, Eastham Unit, in December of 1985. He did not
complain of back problems at Eastham Unit because his work
assignment there did not cause him pain. He was transferred to
Darrington Unit where he began to complain about his back problem
when he was required to do field work. His back was treated with
heat packs at Darrington. He was then transferred to Coffield Unit
where his work assignment remained the same. He did not receive
any treatment at Coffield.
House was next assigned to the Hughes Unit when it opened in
January of 1990. Dr. Hurley first saw House in January of 1991 for
complaints of back pain. Prior to that time House had always been
classified as being in perfect health. House told Dr. Hurley that
he had been in a motor vehicle accident in 1984 and that he was
having a hard time working in the fields. Dr. Hurley examined him,
ordered x-rays of his lumbar spine, sent him to physical therapy,
and sent him for two consultations to the Galveston Orthopedic
Clinic. They diagnosed chronic low back pain and prescribed
Motrin, exercise, and a low bunk. TDCJ changed his medical

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classification to proscribe lifting more than 50 pounds and
assigned him to a low bunk.
House testified that he was required to cut grass and tree
branches and pick up rocks over 50 pounds. Warden Dretke testified
that House's work assignment did not require him to lift over 50
pounds, and that House should tell his crew supervisor that he was
not supposed to lift more than that. House also complained of
being disciplined for not cutting a reasonable amount of grass, his
explanation for his under-productivity being that he could not keep
up the same pace as the other inmates.
House stated that he did not feel that Dr. Hurley was taking
his complaints of back pain seriously because she did not attempt
to get his medical records from the time immediately following the
automobile accident. Dr. Hurley testified that those records were
not necessary to her treatment; that she assumed that House was
telling the truth about his accident and injury; and that she based
her treatment on the opinions of the orthopedists who had seen
House on two recent occasions.
II
ANALYSIS
House continues to complain on appeal that Dr. Hurley did not make
sufficient attempts to obtain his medical records relating to the
accident. He also complains that his back injury was aggravated
due to excessive work and failure of medical officials to conduct
a proper evaluation of the problem.
In reviewing a dismissal for failure to state a claim under

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Fed.R.Civ.P. 12(b)(6), we accept all well pleaded facts as true and
view them in the light most favorable to the plaintiff. Cooper v.
Sheriff, Lubbock County, Texas, 929 F.2d 1078, 1082 (5th Cir.
1991). We may not affirm the dismissal unless "it appears `beyond
doubt that the plaintiff can prove no set of facts in support of
his claim which would entitled him to relief.'" Haines v. Kerner,
404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (other
citations omitted).
To state a claim for relief under 42 U.S.C. § 1983 for denial
of medical care, a prisoner must show that care was denied and that
this denial constituted deliberate indifference to his serious
medical needs. Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S.Ct.
285, 50 L.Ed.2d 251 (1976); Varnado v. Lynaugh, 920 F.2d 320, 321
(5th Cir. 1991). A complaint that medical personnel have been
negligent in diagnosing or unsuccessful in treating a medical
condition is not sufficient to show deliberate indifference.
Estelle, 429 U.S. at 106; Varnado, 920 F.2d at 321.
Here, the district court was correct in concluding that
House's allegations did not demonstrate deliberate indifference to
his medical needs by Dr. Hurley. House acknowledged at the Spears
hearing that Dr. Hurley examined him, ordered x-rays and sent him
to John Sealy Hospital three times. She prescribed pain
medication, and his work classification was changed to light duty
with no lifting over 50 pounds. The fact that Dr. Hurley did not
request his previous medical records does not show deliberate
indifference; neither does the fact that his back pain has

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continued demonstrate a constitutional violation. See Mayweather
v. Foti, 958 F.2d 91 (5th Cir. 1992).
The district court correctly dismissed House's claims against
Dr. Hurley. A dismissal for failure to state a claim under
Rule 12(b)(6) is considered a judgment on the merits. Therefore,
although the judgment did not state whether dismissal was with or
without prejudice, it is deemed to be with prejudice as a matter of
law. See Federated Department Stores, Inc. v. Moitie, 452 U.S.
394, 399 n.3, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981). We affirm the
dismissal with prejudice of House's complaints against Dr. Hurley.
House's complaint also contained allegations of being required
to lift over 50 pounds in violation of his work restrictions and to
cut grass at a faster pace than he was physically able to do, all
of which aggravated his back pain. Facially, those allegations do
state a claim of deliberate indifference by those persons who
required House to work in violation of his medical restrictions.
See Jackson v. Cain, 864 F.2d 1235, 1244-47 (5th Cir. 1989).
Unfortunately, the district court did not address these
allegations. Dr. Hurley was the only named defendant and she was
not the appropriate defendant for those work related claims. We
have no choice, therefore, but to vacate the judgment of dismissal
in part and remand this case so that House may amend his petition
to name the proper defendants to his work related claims. See Neal
v. State of Georgia, 469 F.2d 446, 448 (5th Cir. 1972). So
ordered.
AFFIRMED in part and VACATED and REMANDED in part.

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