Sly v. Day, 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that this opinion should not be published and is not precedent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. 01-31438
Conference Calendar
DARIAN SLY,
Plaintiff-Appellant,
versus
ED C. DAY, JR.; ROBERT TANNER; QUYEN TRAN;
KATHY MCGINNIS; BESSIE CARTER,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 00-CV-2277-J
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June 18, 2002
Before HIGGINBOTHAM, DAVIS, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Darian Sly, Texas prisoner # 287746, appeals the district
court’s dismissal of his 42 U.S.C. § 1983 action pursuant to FED.
R. CIV. P. 12(b)(6). Sly’s motion to amend his brief is DENIED.
Sly argues that the defendants were deliberately indifferent to
his serious medical needs relating to a bullet fragment in his
left leg. He contends that he was subjected to suffering for
three months, that he did not receive adequate treatment for

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pain, and that referral to an orthopedic specialist was delayed.
He contends that the specialist’s orders for physical therapy
were not carried out as prescribed, causing him to acquire a
deformity in walking and standing.
Unsuccessful medical treatment, acts of negligence, neglect,
or medical malpractice are insufficient to give rise to a 42
U.S.C. § 1983 cause of action. Varnado v. Lynaugh, 920 F.2d 320,
321 (5th Cir. 1991). Nor is a prisoner's disagreement with his
medical treatment sufficient to state a claim under 42 U.S.C.
§ 1983. Id.
Sly himself characterizes the defendants’ actions as
“negligence” in his brief. Dr. Tran monitored Sly’s leg
condition frequently over a period of three months, and as Sly
himself alleged, “when Dr. Tran saw that the problem had grew
[sic] worse,” Tran gave Sly Naprosyn for pain, referred him to
the specialist, and ordered restrictions on walking. Sly’s
complaints about the fact that Tran did not take these steps
sooner amount to nothing more than a disagreement with Dr. Tran’s
earlier assessments of his condition. The administrative
defendants were not deliberately indifferent in relying on Dr.
Tran’s assessments in denying Sly’s grievances. The delay in
physical therapy is also attributable to negligence. The facts
alleged, that the medical department had put in requests for
therapy on two occasions, do not demonstrate deliberate
indifference. The district court did not err in granting the

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defendants’ motion to dismiss. Cinel v. Connick, 15 F.3d 1338,
1341 (5th Cir. 1994)(de novo review).
Sly's appeal is without arguable merit and is frivolous.
See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).
Because the appeal is frivolous, it is DISMISSED. See 5TH CIR. R.
42.2.
Sly is hereby informed that the dismissal of this appeal as
frivolous counts as a strike for purposes of 28 U.S.C. § 1915(g).
See Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996)
(“[D]ismissals as frivolous in the district courts or the court
of appeals count [as strikes] for the purposes of [§ 1915(g)].”).
We caution Sly that once he accumulates three strikes, he may not
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 28 U.S.C.
§ 1915(g).
APPEAL DISMISSED AS FRIVOLOUS; MOTION DENIED.

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