IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-20316

Summary Calendar

THERON OWENS,

Plaintiff-Appellant

v.

LORIE DAVIS; WARDEN BREWER; DOCTOR BETTY WILLIAMS; 

ONUIGB, Physician’s Assistant; UTMB AT GALVESTON, 

Defendants-Appellees

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:18-CV-3068

Before HIGGINBOTHAM, HO, and ENGELHARDT, Circuit Judges.

PER CURIAM:*

Theron Owens, Texas prisoner # 1734133, appeals the district court’s 

dismissal of his 42 U.S.C. § 1983 complaint as frivolous under 28 U.S.C. 

§ 1915(e)(2)(B)(i). We review the district court’s decision for abuse of 

discretion. See Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005). For the 

reasons below, we affirm.

* 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

FILED

April 21, 2020

Lyle W. Cayce

Clerk

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No. 19-20316

2

As to Owens’s claim that the defendants unconstitutionally denied him 

access to the courts, Owens fails to show how he was prejudiced by any alleged 

acts. See Lewis v. Casey, 518 U.S. 343, 351-53 (1996). Notably, Owens does 

not identify any particular nonfrivolous legal claim that he was pursuing and 

how the alleged actions of the defendants hindered his pursuit of any such

claim. See Christopher v. Harbury, 536 U.S. 403, 415 (2002). Accordingly, 

Owens has not shown that the district court abused its discretion in dismissing 

his access-to-the-courts claim as frivolous.

Regarding his claim that the defendants were deliberately indifferent to 

his serious medical needs, Owens contends that the defendants failed to treat 

properly his back pain when they, among other things, denied his request for 

an MRI. Owens’s own admissions regarding the treatment that he received 

with respect to his back pain and the grievances contained in the record defeat 

any claim that the defendants acted with a wanton disregard for Owens’s 

serious medical needs. To the contrary, the record demonstrates that Owens 

has been seen regularly by medical personnel; was prescribed pain medication 

and physical therapy; and was provided with a special disability chow pass, 

walking cane, and back brace. See Banuelos v. McFarland, 41 F.3d 232, 235 

(5th Cir. 1995). Inasmuch as Owens complains about a misdiagnosis of his 

back condition, his complaint is, at best, one of mistake, negligence or 

malpractice, not deliberate indifference, particularly in the absence of any 

allegation that his condition required immediate care or subjected him to any 

wanton infliction of pain. See Farmer v. Brennan, 511 U.S. 825, 839 (1994); 

Easter v. Powell, 467 F.3d 459, 463 (5th Cir. 2006); Gobert v. Caldwell, 463 

F.3d 339, 346 (5th Cir. 2006).

The true nature of Owens’s complaint is a challenge to the medical 

judgment exercised by prison medical staff in determining the appropriate 

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No. 19-20316

3

course of treatment for his back pain, which complaint does not give rise to a 

constitutional violation. See Gobert, 463 F.3d at 346. To the extent that he 

specifically complains that he has been denied an MRI or the optimum pain 

reliever for his back condition, his complaint falls short of establishing any 

constitutional violation. See id. at 351-52. Accordingly, Owens has not shown 

that the district court abused its discretion in dismissing his deliberateindifference claim as frivolous.

Because Owens’s case does not present extraordinary circumstances, we 

deny his motion for the appointment of counsel. See Cooper v. Sheriff, Lubbock 

Cty., Tex., 929 F.2d 1078, 1084 (5th Cir. 1991).

AFFIRMED; MOTION FOR APPOINTMENT OF COUNSEL DENIED; 

MOTION FOR STAY OF APPEAL DENIED.

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