IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-30898

Summary Calendar

STERLING J. BLADE,

Plaintiff-Appellant

v.

TIMOTHY KEITH; DOCTOR ENGELSON; PAT THOMAS; NICOLE 

WALKER,

Defendants-Appellees

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 1:12-CV-1995

Before STEWART, Chief Judge, and JOLLY and SOUTHWICK, Circuit 

Judges.

PER CURIAM:*

Sterling J. Blade, Louisiana prisoner # 405748, appeals the district 

court’s dismissal of his 42 U.S.C. § 1983 complaint pursuant to 28 U.S.C. 

§§ 1915(e)(2)(B) and 1915A(b)(1) as frivolous and for failure to state a claim 

upon which relief may be granted. In his complaint, Blade alleged that the 

* 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

May 7, 2014

Lyle W. Cayce

Clerk

 

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No. 13-30898

defendants were deliberately indifferent to his serious medical needs based 

upon a failed tooth extraction and an eight month delay in having the tooth 

surgically removed.

Blade argues that the district court erred by dismissing his complaint. 

He maintains that Dr. Engelson deprived him of proper medical treatment by 

aggravating the problem with his tooth by breaking the tooth under the gums. 

He contends that the delay in having the tooth surgically removed was 

unreasonable and that Dr. Engelson knew about the seriousness of the 

problem. He contends that he told Warden Timothy Keith, Assistant Warden 

Nicole Walker, and Medical Director Pat Thomas about the problem and that 

they did not assist him. 

We review the dismissal of Blade’s complaint de novo. See Velasquez v. 

Woods, 329 F.3d 420, 421 (5th Cir. 2003). A claim may be dismissed as 

frivolous if it does not have an arguable basis in fact or law. Gonzales v. Wyatt, 

157 F.3d 1016, 1019 (5th Cir. 1998). A claim may be dismissed for failure to 

state a claim upon which relief may be granted if, assuming all well pleaded 

facts are true, the plaintiff has not pleaded “enough facts to state a claim to 

relief that is plausible on its face.” In re Katrina Canal Breaches Litig., 

495 F.3d 191, 205 (5th Cir. 2007) (internal quotation marks and citation 

excluded).

Blade’s allegations that Dr. Engelson did not use the proper anesthetics 

before attempting to remove his tooth and that Dr. Engelson broke his tooth 

below his gums without extracting it are insufficient to state a viable claim 

because they show, at most, that Blade disagreed with the treatment provided 

by Dr. Engelson and that Dr. Engelson may have committed malpractice or 

provided ineffective treatment. See Stewart v. Murphy, 174 F.3d 530, 534 

(5th Cir. 1999); Banuelos v. McFarland, 41 F.3d 232, 235 (5th Cir. 1995). 

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Blade’s allegations showed that he continued to receive treatment after the 

failed extraction of his tooth as Dr. Engelson proscribed him pain medication 

and antibiotics, and Dr. Engelson put him on the referral list for the LSU Oral 

Surgery Clinic on three occasions. Thus, while Blade may have disagreed with 

the treatment he received after the failed tooth extraction, he did not allege 

that the defendants refused to provide him treatment. Although Blade 

asserted that it took too long for his tooth to be surgically removed, his 

allegations showed that he was quickly put on the referral list for the LSU Oral 

Surgery Clinic, and Blade did not allege that the defendants had any control 

over how quickly a surgery could be scheduled with the LSU Oral Surgery 

Clinic. Given these circumstances, Blade’s allegations did not rise to the level 

of deliberate indifference to serious medical needs, and the district court did 

not err by dismissing the complaint. See Stewart, 174 F.3d at 534-38.

The district court’s dismissal of Blade’s complaint as frivolous and for 

failure to state a claim counts as a strike for purposes of 28 U.S.C. § 1915(g). 

See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996). Blade is 

CAUTIONED that if he accumulates three strikes, he will not be able to 

proceed in forma pauperis 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 § 1915(g).

AFFIRMED; SANCTION WARNING ISSUED.

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 Case: 13-30898 Document: 00512622373 Page: 3 Date Filed: 05/07/2014