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. 09-10404

Summary Calendar

JOHN D. FAILS, also known as John Daniel Fails, Jr., also known as John D

Fails, Jr., 

Plaintiff - Appellant

v.

DENISE DESHIELDS, Medical Director, Texas Tech University Health

Science Center Individually and in Their Official Capacity; BRAD

LIVINGSTON, Executive Director, Texas Department of Criminal Justice,

Individually and in Their Official Capacity; RISSIE OWENS, Chairperson,

Texas Board of Pardons and Paroles Individually and in Their Official

Capacity; GERALD DAVIS, Assistant Warden, Individually and in Their

Official Capacity,

Defendants - Appellees

Appeal from the United States District Court 

for the Northern District of Texas

USDC No. 2:08-CV-88

Before GARZA, CLEMENT, and OWEN, Circuit Judges.

PER CURIAM:*

United States Court of Appeals

Fifth Circuit

F I L E D

October 22, 2009

Charles R. Fulbruge III

Clerk
No. 09-10404

2

John D. Fails, pro se, appeals the district court’s dismissal of his § 1983

complaint alleging deliberate indifference to serious medical needs. For the

following reasons, we AFFIRM.

FACTS AND PROCEEDINGS

Fails, proceeding in forma pauperis, brought suit after he suffered several

knee injuries while incarcerated at a Texas Department of Criminal Justice

(“TDCJ”) prison in Amarillo, Texas. The original complaint named as

defendants Denise DeShields, the medical director of the Texas Tech University

Health Science Center; Brad Livingston, the executive director of the TDCJ; and

Rissie Owens, the chairwoman of the Texas Board of Pardons and Paroles. The

amended complaint added Gerald Davis, an assistant warden at the Amarillo

prison, as a defendant. Through 42 U.S.C. § 1983, Fails alleges that the

defendants violated the Eighth Amendment by displaying deliberate indifference

to his serious medical needs. 

Fails was unsatisfied with the medical care he received after he slipped

while getting out of the shower and injured his left knee. According to the

account in the amended complaint and the grievances attached to the original

complaint, which include the prison’s response to his grievances, Fails visited

the unit physician the morning after his injury. The physician told Fails, who

is diabetic, that his knee was too swollen to be examined effectively and that he

should return for a follow-up appointment. The doctor also provided him with

crutches and ibuprofen, both of which Fails refused—the crutches because he

claimed they were too short, and the medicine because he is opposed to taking

most medications. Fails was seen a second time several days after scheduling

a follow-up appointment. The doctor ordered x-rays of Fails’s knee and, after a

subsequent evaluation, a knee brace. At a later evaluation, Fails did not

complain about his knee, but was prescribed arch supports for his feet. 
No. 09-10404

 The amended complaint contains a conclusory allegation that Gerald Davis failed to 1

ensure that Fails’s living conditions did not cause further damage to his knee. For the reasons

stated below, Fails failed to plead a cognizable Eighth Amendment violation against any

named defendant, including Davis. The district court correctly dismissed the suit against

Davis as frivolous and for failure to state a claim; we note, however, that Fails also neglected

to exhaust his administrative remedies as to any claim against Davis related to his knee

injuries. 42 U.S.C. § 1997e(a). 

3

Subsequently, Fails had several accidents in which his knee “gave out.”

The medical department ordered two knee x-rays, one pelvic x-ray, and an MRI.

The MRI results showed that Fails had previously undergone knee surgery for

a pre-existing injury, and that his knee had since demonstrated “minor

degenerative changes.” The treating official told Fails that his knee problem

would stabilize over time and prescribed crutches. In 2007, Fails injured his

right knee. An orthopedic specialist told him that surgery would not cure his

knee problems. Fails exhausted his administrative remedies by filing the proper

grievances, which he attached to his complaint. 

In October 2007, Fails sent a settlement offer to DeShields. Fails wrote

similar letters to Livingston and Owens in March 2008. The letters are the only

things that connect DeShields, Livingston, and Owens to Fails’s allegations.1

The magistrate judge’s report and recommendation suggested dismissing

Fails’s suit without prejudice for failure to state a claim and with prejudice as

frivolous. The magistrate judge reasoned that the prison officials’s conduct, as

detailed in his complaints and the attached grievances, did not amount to

deliberate indifference and that the suit was frivolous. Over Fails’s objection,

the district court adopted the report and recommendation. Noting that Fails did

not name any of his medical caregivers as defendants, it dismissed the suit.

Fails appeals.

STANDARD OF REVIEW

Civil rights complaints filed by prisoners should be dismissed if they are

“frivolous, malicious, or fail[] to state a claim upon which relief may be granted.”
No. 09-10404

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28 U.S.C. § 1915A(b)(1). This court reviews a district court’s § 1915A dismissal

de novo. Hutchins v. McDaniels, 512 F.3d 193, 195 (5th Cir. 2007) (citation

omitted). District courts may also dismiss, as frivolous, complaints of prisoners

proceeding in forma pauperis when they lack an arguable basis in law or fact.

28 U.S.C. § 1915(e)(2)(B)(i); Hutchins, 512 F.3d at 195 (citation omitted). Such

dismissals are reviewed for abuse of discretion. Geiger v. Jowers, 404 F.3d 371,

373 (5th Cir. 2005) (citation omitted). Because the magistrate judge referred to

both § 1915A and § 1915(e) when it recommended dismissing the suit as

frivolous, the court will review the issues raised on appeal de novo. Velasquez

v. Woods, 329 F.3d 420, 421 (5th Cir. 2003).

To state a claim upon which relief may be granted, “the plaintiff must

plead enough facts to state a claim to relief that is plausible on its face.” See In

re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (internal

quotations and citation omitted). “[A] plaintiff’s obligation to provide the

‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action will

not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations

omitted). In effect, “[f]actual allegations must be enough to raise a right to relief

above the speculative level.” Id.; see also Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-

50 (2009). 

DISCUSSION

A plaintiff must meet an “extremely high” standard to show deliberate

indifference to a serious medical need under the Eighth Amendment. Gobert v.

Caldwell, 463 F.3d 339, 346 (5th Cir. 2006) (quotations omitted). For a prison

official to be liable for deliberate indifference, the plaintiff must show that “the

official knows of and disregards an excessive risk to inmate health or safety; the

official must both be aware of facts from which the inference could be drawn that
No. 09-10404

5

a substantial risk of serious harm exists, and he must also draw the inference.”

Farmer v. Brennan, 511 U.S. 825, 837 (1994). 

Deliberate indifference is especially hard to show when the inmate was

provided with ongoing medical treatment. “Unsuccessful medical treatment,

acts of negligence, or medical malpractice do not constitute deliberate

indifference, nor does a prisoner’s disagreement with his medical treatment,

absent exceptional circumstances.” Gobert, 463 F.3d at 346 (citations omitted).

Complaints that more treatment should have been ordered, without more, are

insufficient to show deliberate indifference: “the decision whether to provide

additional treatment is a classic example of a matter for medical judgment.”

Domino v. Texas Dep’t of Crim. Justice, 239 F.3d 752, 756 (5th Cir. 2001)

(internal quotation omitted). 

From the face of Fails’s complaint and amended complaint, it is clear that

he was seen when he requested treatment and that the doctors and physician’s

assistants who saw him attempted to provide several remedies for his knee

problems. At no time were they deliberately indifferent to his medical needs.

They provided him with knee braces, performed an MRI, and offered him

painkillers, among other attempted remedies, for a pre-existing knee condition

that was aggravated by a series of accidents. Fails’s dissatisfaction with their

efforts does not suffice to create a constitutional violation. 

Fails did not allege that prison officials “refused to treat him, ignored his

complaints, intentionally treated him incorrectly, or engaged in any similar

conduct that would clearly evince a wanton disregard for any serious medical

needs.” Domino, 239 F.3d at 756 (internal quotation omitted). Nor did he allege

any act that evinces “obduracy and wantonness,” Bradley v. Puckett, 157 F.3d

1022, 1025 (5th Cir. 1998) (quotation omitted), or that rises above simple

negligence, see Lawson v. Dallas County, 286 F.3d 257, 262-63 (5th Cir. 2002)

(“Deliberate indifference cannot be inferred from a prison official’s mere failure
No. 09-10404

6

to act reasonably, i.e., it cannot be inferred from negligence alone.” (citation

omitted)). Additionally, it is clear that the defendants Fails named took no part

in his medical treatment; even if a constitutional violation had occurred, they

could not have been liable for it under a respondeat superior theory. See, e.g.,

Bush v. Viterna, 795 F.2d 1203, 1206 (5th Cir. 1986) (citing Monell v. Dep’t of

Soc. Servs., 436 U.S. 658, 690-95 (1978)). 

On these facts, the district court properly dismissed without prejudice

Fails’s complaint pursuant to 28 U.S.C. § 1915A for failure to state a claim upon

which relief can be granted. Its dismissal with prejudice for frivolousness was

also correct. A prisoner’s complaint is frivolous if it lacks an arguable basis in

law or fact. See Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999). Fails’s case

did not falter solely because he named the wrong parties. The facts as recounted

in the complaint and its attached materials, as well as the amended complaint

the court allowed Fails to file, could not support liability for an Eighth

Amendment violation. The district court properly dismissed the case as

frivolous.

CONCLUSION

The district court’s dismissal of Fails’s complaint is AFFIRMED.