*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

FOR THE FIFTH CIRCUIT

No. 97-40049

Summary Calendar

CHARLES SKINNER,

Plaintiff-Appellant,

versus

JAMES CAMPBELL, Sheriff; PHIL GOODWIN,

Jail Administrator; CHEROKEE COUNTY JAIL,

Defendants-Appellees.

Appeal from the United States District Court

For the Eastern District of Texas

(6:96-CV-704)

November 19, 1997

Before POLITZ, Chief Judge, KING and DENNIS, Circuit Judges.

PER CURIAM:*

Charles Skinner, a Texas state prisoner, appeals the dismissal of his

42 U.S.C. § 1983 civil rights complaint as frivolous pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(i).
2

Background

In July 1995 Skinner was confined in Cherokee County Jail in Rusk, Texas.

On or about July 8, 1995, at his request, a family member brought eye drop

medicine to the jail for his use. A second inmate, James Roberts, also had eye drop

medication prescribed for his use.

Skinner alleges he requested his eye drop medication and the jailer brought

him a bottle of eye drops with “K-tank” written on it. Skinner used the eye drops

for four days until he experienced substantial pain and discomfort. Shortly

thereafter, Skinner was told that the medication given him was prescribed for

Roberts. Skinner thereafter was given the correct bottle of eye drops.

Skinner alleges that as a result of using the wrong eye medication he could

notsee out of hisright eye. He filled out a sick call request and was seen by the jail

doctor. The jail doctor could not assist him and suggested that Skinner be taken to

an eye doctor. This did not occur and Skinner wrote the jail administrator and the

sheriff and filed a grievance. There was no reply. A few days later Skinner went

to his scheduled court appearance and, at this hearing, requested that the judge

assist him in securing medical attention. The judge instructed the sheriff’s

department to arrange for Skinner to see an eye doctor.

When Skinner returned to the jail he was permitted to call his family to ask
1

 28 U.S.C. § 1915(e)(2)(B)(i).

2 Eason v. Thaler, 14 F.3d 8 (5th Cir. 1994).

3 Neitzke v. Williams, 490 U.S. 319, 327 (1989).

3

them to arrange an appointment for him. Skinner alleges that from July until

October, hisfamily transported him to and from several appointments with the eye

doctor, with the exception of October 20, when employeesfrom the jail transported

him there.

Skinner alleges that the medicine mix-up resulted in partial blindness of his

right eye. He claims that the defendants violated his civil rights. The trial court

dismissed the claim as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i). Skinner

timely appealed.

Analysis

A complaint which is sought to be filed in forma pauperis may be dismissed

asfrivolousif it lacks an arguable basisin law or fact.1 We review such a dismissal

for abuse of discretion.2 We affirm the trial court’s determination that the

petitioner’s claim lacks an arguable basis in law because it is “based on an

indisputably meritless legal theory.”3

To establish a claim undersection 1983 the plaintiffmust allege the violation

of a right, secured by the Constitution and laws of the United States, by a person
4 West v. Atkins, 487 U.S. 42 (1988); Becerra v. Asher, 105 F.3d 1042 (5th Cir. 1997).

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

6 Whitley v. Albers, 475 U.S. 312, 319 (1986).

7 See Wilson v. Seiter, 501 U.S. 294 (1991).

8 Farmer. It is not clear from the record whether Skinner was a convicted prisoner or a

pretrial detainee. The analysis remains the same, however, because Skinner is challenging

an episodic act, which is governed by the subjective deliberate indifference standard

enunciated in Farmer. Scott v. Moore, 114 F.3d 51 (5th Cir. 1997).

4

acting under color of state law.4 The petitioner claims the defendants violated his

fourteenth amendment and eighth amendmentrightsto adequate medical treatment

because: (1) he received the wrong medication; (2) the defendants delayed

providing him medical attention; and (3) the defendantsfailed to train or supervise

their employeesin the appropriate proceduresfor providing medication to inmates.

The eighth amendment places a duty on prison officials to ensure that

inmates receive adequate food, clothing, shelter, and medical care.5 Eighth

amendment liability, however,requires “more than ordinary lack of due care for the

prisoner’s interests or safety.”6 For the prison officials to be found liable, Skinner

must allege and be able to prove that they acted with “deliberate indifference” to

his medical needs,7i.e., that they must have known of and disregarded an excessive

risk to his health or safety.8

Skinner’s allegations do not reach the required threshold of deliberate
5

indifference. For the reasons assigned by the magistrate judge and adopted by the

district court in its Order signed and entered on December 10, 1996, we AFFIRM.