* 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. 06-60397

Summary Calendar

CORNELIUS TAYLOR

Plaintiff-Appellant

v.

CMCF 720 CLINIC; MISSISSIPPI DEPARTMENT OF CORRECTIONS;

CHRISTOPHER B EPPS; LAWRENCE KELLY; ROBERT CULPEPPER;

GLORIA PERRY; JOHN DOES

Defendants-Appellees

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 3:04-CV-520

Before WIENER, GARZA, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Cornelius Taylor, Mississippi prisoner # K3171, alleged

under 42 U.S.C. § 1983 that, when he suffered a heart attack, prison clinic

officials gave him substandard treatment and delayed calling an ambulance to

take him to the hospital, thereby causing extensive damage to his heart. Taylor

appeals the district court’s dismissal of his complaint under 28 U.S.C.

United States Court of Appeals

Fifth Circuit

F I L E D

November 19, 2007

Charles R. Fulbruge III

Clerk
No. 06-60397

2

§ 1915(e)(2)(B)(i) and (ii) as frivolous and for failure to state a claim on which

relief may be granted. We review a dismissal as frivolous pursuant to

§ 1915(e)(2)(B)(i) for abuse of discretion and review a dismissal for failure to

state a claim pursuant to § 1915(e)(2)(B)(ii) de novo. Geiger v. Jowers, 404 F.3d

371, 373 (2005); Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir. 1999). As the

district court dismissed the claims pursuant to both subsections, our review is

de novo. See Geiger, 404 F.3d at 373.

Taylor asserts that the prison clinic staff had access to his health records

which show that he had suffered a heart attack prior to his incarceration;

therefore the clinic staff had actual knowledge of the risk to his health that

would result from delaying proper treatment. He is incredulous that the clinic

staff could have given him such substandard treatment but for deliberate

indifference.

Prison officials violate the Eighth Amendment’s prohibition against cruel

and unusual punishment when they demonstrate deliberate indifference to a

prisoner’s serious medical needs, constituting an “unnecessary and wanton

infliction of pain,” or when they delay medical care “if there has been deliberate

indifference [that] results in substantial harm.” Estelle v. Gamble, 429 U.S. 97,

104-05 (1976) (internal quotations and citation omitted); Easter v. Powell, 467

F.3d 459, 463 (5th Cir. 2006) (internal quotation marks and citation omitted).

A prison official acts with deliberate indifference when he “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 a substantial risk

of serious harm exists, and he must also draw the inference.” Farmer v.

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

The facts alleged by Taylor demonstrate that, in the two and a half hours

that Taylor was in the prison clinic before being transported to the hospital, the

clinic staff tried to ascertain whether Taylor was having a heart attack. They

performed an enzyme test and placed Taylor on a cardiac monitor; provided
No. 06-60397

3

Taylor with oxygen, an analgesic, and an aspirin; and attempted to keep him

calm. It appears to be true that the clinic staff wrongly concluded that Taylor

was not having a heart attack, but when Taylor’s symptoms did not improve, he

was taken to a hospital in an ambulance. (Taylor has no complaint about his

treatment in the hospital.)

Taylor may have pled facts sufficient to demonstrate that he was the

victim of medical malpractice or negligence and that he suffered serious harm

as a result; however, unsuccessful medical treatment, negligence, neglect, and

medical malpractice do not give rise to a § 1983 action. Varnado v. Lynaugh, 920

F.2d 320, 321 (5th Cir. 1991). Taylor has not pled facts sufficient to

demonstrate, if true, that the defendants disregarded an excessive risk to his

health. See Farmer, 511 U.S. at 837. The judgment of the district court is

AFFIRMED. Taylor’s motion for summary judgment by default is DENIED.