1

United States Court of Appeals,

Fifth Circuit.

No. 96-40912

Summary Calendar.

Joseph H. NORTON, Plaintiff-Appellant,

v.

E.U. DIMAZANA, M.D.; Texas Department of Criminal Justice,

Defendants-Appellees.

Sept. 22, 1997.

Appeal from the United States District Court for the Southern

District of Texas.

Before WIENER, BARKSDALE and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Texas prisoner Joseph Norton appeals the district court's

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

that the deliberate indifference of the prison staff to his medical

needs violated his Eighth Amendment rights. He also asserts that

the fee provisions of the Prison Litigation Reform Act violate his

right of access to the courts, that the district court abused its

discretion by employing irregular procedures in deciding his case,

that the court must provide him a copy of the transcript from his

in forma pauperis hearing, and that the district court erred by

denying his motion for counsel. Finding no reversible error, we

affirm.

I

For years, Norton has experienced serious, painful problems

associated with a prolapsed rectum; basically he has suffered from
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grossly inflamed external hemorrhoids and encountered difficulties

in retracting the muscles of his rectum after a bowel movement. In

such cases, the muscles of Norton's sphincter are expelled from his

anus, and reinserting them is too painful for Norton to accomplish

alone. Prison medical staff, on many such occasions, rendered

their assistance. They also gave Norton supplies, such as gloves

and lubricants, to aid him in performing the job himself. For

several years, Norton experienced these and associated problems in

prison. Over the two-year span preceding this lawsuit, he saw

medical professionals, both inside and outside the prison, at least

monthly. Despite constant attention, Norton's condition has

improved little.

Norton filed a complaint contending that approximately forty

prison officials and prison medical staff members were deliberately

indifferent to his serious medical needs, in violation of his

Eighth Amendment rights. Among other things, he complains that

prison officials should have attempted different diagnostic

measures or alternative modes of treatment. He requests damages,

injunctive relief, and appointment of counsel. Norton also alleged

that, when the district court required him to provide information

about his prison trust fund account, prison officials intentionally

withheld information about the account. However, the District

Clerk received the account information in timely enough fashion to

compute and assess the initial, partial filing fee.

The district court conducted a hearing on Norton's motion for

leave to proceed in forma pauperis ("i.f.p.") and on his allegation
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that prison officials intentionally withheld account information.

At this hearing, the court also sought to focus the issues asserted

by Norton's complaint, and Norton testified at the hearing about

the facts he alleged. The court orally granted Norton leave to

proceed i.f.p. Then the court called a recess in the hearing,

during which it ordered the defense attorney to review Norton's

medical records. When the court reconvened, the judge noted that,

in his opinion, the prison had not ignored Norton's physical

condition. The judge nonetheless ordered the defense attorney to

speak with doctors and file a report regarding Norton's medical

condition.

The court subsequently issued a written order denying Norton's

motion for leave to proceed i.f.p. and assessed a partial filing

fee of $24 (twenty percent of the $120 district court filing fee),

as required by the Prison Litigation Reform Act, Pub.L. No. 104-

134, 110 Stat. 1321 (1996) ("PLRA" or "Act"). See 28 U.S.C. §

1915(b)(1)-(2) (setting out PLRA fee provisions).

The attorney for the defendants subsequently filed the report

requested by the district court, with an attached affidavit by one

Dr. Owen Murray and a certified copy of Norton's prison medical

records. The district court reviewed the report, dismissed

Norton's complaint as frivolous under 28 U.S.C. § 1915(e)(2)(b)(1),

and denied Norton's motion for appointment of counsel as moot.

Norton timely appealed.

In an earlier order, we granted Norton's motion for leave to

proceed i.f.p. on appeal; assessed a $40 initial, partial filing
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fee for the appeal; ordered Norton to pay the remainder of the

$105 filing fee in installments pursuant to the PLRA; and denied

Norton's motion for production of a transcript of the i.f.p.

hearing in the district court. Norton v. Dimazana, No. 96-40912

(5th Cir. Feb.27, 1997) (unpublished). We now address the merits

of Norton's appeal.

II

On appeal, Norton raises five issues: (1) whether the filing

fee provisions of the PLRA violate prisoners' right of access to

the courts; (2) whether the district court erred in dismissing his

section 1983 suit as frivolous; (3) whether the erratic procedure

by which the district court denied him i.f.p. status and dismissed

his appeal violates Norton's right to due process; (4) whether

this court erred in denying his request for a transcript of the

i.f.p. hearing; and (5) whether the district court erred in

denying his motion for appointment of counsel.

A

Construing his brief liberally, we first address Norton's

assertion that the fee provisions of the PLRA deny prisoners

constitutionally guaranteed access to the courts. In Bounds v.

Smith, the Supreme Court articulated a "fundamental constitutional

right of access to the courts[,]" 430 U.S. 817, 828, 97 S.Ct. 1491,

1498 52 L.Ed.2d 72 (1977), which requires prison officials to

guarantee prisoners a reasonably adequate opportunity to present

claimed violations of fundamental constitutional rights to the

courts. Lewis v. Casey, --- U.S. ----, ----, 116 S.Ct. 2174, 2180,
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135 L.Ed.2d 606 (1996). Although other courts have addressed the

issue, see Nicholas v. Tucker, 114 F.3d 17, 21 (2d Cir.1997);

Roller v. Gunn, 107 F.3d 227, 231-33 (4th Cir.1997), petition for

cert. filed, --- U.S.L.W. ---- (U.S. No. 97-5072) (June 20, 1997);

Hampton v. Hobbs, 106 F.3d 1281 (6th Cir.1997), the question of

whether the PLRA's fee provisions unconstitutionally deny access to

the courts is an issue of first impression in this circuit.

Norton does not specify whether he is challenging the

district court's assessment of fees for his original suit, for his

appeal, or both. He did not challenge the assessment of a partial

filing fee in the district court proceeding, and he paid the fee

that the court imposed. The district court made no explicit

findings regarding the constitutionality of the PLRA fee

provisions. We normally review contentions not raised in the

district court for plain error. Douglass v. United Services Auto.

Ass'n, 79 F.3d 1415, 1428 (5th Cir.1996) (en banc ). To prevail on

plain error review, an appellant must show: (1) that an error

occurred; (2) that the error was plain, which means clear or

obvious; (3) the plain error affects substantial rights; and (4)

refusal to correct the error would seriously affect the fairness,

integrity, or public reputation of judicial proceedings. Highlands

Ins. Co. v. National Union Fire Ins. Co., 27 F.3d 1027, 1032 (5th

Cir.1994), cert. denied, 513 U.S. 1112, 115 S.Ct. 903, 130 L.Ed.2d

786 (1995).

This case is on slightly different footing from the normal

failure to assert a claim, since a liberal reading of Norton's
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brief also presents a challenge to the imposition of fees on

appeal. Obviously, Norton could not have challenged the assessment

of appellate fees during his district court proceeding.

Nevertheless, we find that under either plain error or de novo

review, the fee provision does not unconstitutionally deny

prisoners access to the courts.

The fee provision of the PLRA provides:

(b)(1) ... [I]f a prisoner brings a civil action or files an

appeal in forma pauperis, the prisoner shall be required to

pay the full amount of a filing fee. The court shall assess

and, when funds exist, collect, as a partial payment of any

court fees required by law, an initial partial filing fee of

20 percent of the greater of—

(A) the average monthly deposits to the prisoner's

account; or

(B) the average monthly balance in the prisoner's account

for the 6-month period immediately preceding the filing

of the complaint or notice of appeal.

(2) After payment of the initial partial filing fee, the

prisoner shall be required to make monthly payments of 20

percent of the preceding month's income credited to the

prisoner's account. The agency having custody of the prisoner

shall forward payments from the prisoner's account to the

clerk of the court each time the amount in the account exceeds

$10 until the filing fees are paid.

28 U.S.C. § 1915(b), as amended by the PLRA. The PLRA provides

that prisoners proceeding i.f.p. are responsible for paying the

full amount of the filing fee; however, the statute provides that

impecunious litigants may pay the fee over time, if necessary. The

PLRA also provides that no prisoner shall be denied access to the

courts because he or she has insufficient funds to pay the initial,

partial filing fee. 28 U.S.C. § 1915(b)(4), as amended by the PLRA

("In no event shall a prisoner be prohibited from bringing a civil
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action or appealing a civil or criminal judgment for the reason

that the prisoner has no assets and no means by which to pay the

initial partial filing fee."). The federal statute, of course,

does not affect a prisoner's ability to bring actions in state

court or through state administrative proceedings.

"While the precise contours of a prisoner's right of access to

the courts remain somewhat obscure, the Supreme Court has not

extended this right to encompass more than the ability of an inmate

to prepare and transmit a necessary legal document to a court."

Brewer v. Wilkinson, 3 F.3d 816, 821 (5th Cir.1993) (footnotes

omitted), cert. denied, 510 U.S. 1123, 114 S.Ct. 1081, 127 L.Ed.2d

397 (1994). It is apparent that the fee provisions of the PLRA do

not hinder prisoners' abilities to prepare or transmit their cases

or appeals to court.

To be sure, the Act's fee provisions do change the terms of

i.f.p. litigation: litigants proceeding under the statute must now

pay at least part of the fee up front, and whenever able, i.f.p.

litigants will now be responsible for making monthly installment

payments toward repaying the full amount of the filing fee (usually

$105 for an appeal). 28 U.S.C. § 1915(b)(1)-(2); see also 28

U.S.C. § 1913 note (Judicial Conference Schedule of Fees).

Previously, i.f.p. litigants were not responsible for prepaying any

of the filing fee, and although such litigants technically remained

liable for the full amount of the fee, few in fact ever paid it.

See Abdul-Wadood v. Nathan, 91 F.3d 1023, 1025 (7th Cir.1996) ("All

§ 1915 has ever done is excuse prepayment of docket fees; a
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litigant remains liable for them, and for other costs, although

poverty may make collection impossible.").

The obligation to pay filing fees, over time if necessary, is

not an unconstitutional denial of access to the court system. As

we have noted before, "there is no absolute "right' to proceed in

a civil action without paying a filing fee; this is a procedural

privilege that Congress may extend or withdraw." Strickland v.

Rankin County Corr. Facility, 105 F.3d 972, 975 (5th Cir.1997);

Startti v. United States, 415 F.2d 1115, 1116 (5th Cir.1969).

Furthermore, section 1915(b)(4) contains an explicit guarantee that

no prisoner will be barred from pursing a civil action, or from

appealing a civil or criminal judgment, because he or she does not

have enough money. 28 U.S.C. § 1915(b)(4). This saving provision

sufficiently guarantees that all prisoners will have access to the

courts, regardless of their income. Nicholas, 114 F.3d at 21.

The fee provisions of the PLRA, in a sense, level the playing

field between incarcerated i.f.p. litigants and other litigants in

the federal courts. Non-i.f.p. litigants must generally consider

the cost of filing when deciding whether to bring a civil action or

appeal in federal courts. The PLRA changes the rules of i.f.p.

litigation, requiring indigent prisoners for the first time to make

the same prudential decisions about the merits of their lawsuits

that everyone else makes before filing. Adepegba v. Hammons, 103

F.3d 383, 386 (5th Cir.1996). This limits the access of indigent

prisoners to the courts no more than the filing fee restricts

non-i.f.p. litigants. To the contrary, the PLRA provisions
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allowing repayment over time allow impecunious prisoners to bring

actions even when they are unable to pay filing fees up front.

This allows them more access to the courts than most non-prisoners

receive. We therefore find that the fee provisions of the PLRA do

not unconstitutionally limit the access of indigent prisoners to

the courts.

B

Norton challenges the district court's dismissal as frivolous

of his section 1983 suit claiming deliberate indifference to his

serious medical needs, in violation of the Eighth Amendment. The

district court dismissed his suit under 28 U.S.C. § 1915(d), now

redesignated as § 1915(e)(2)(B)(i) by section 804 of the PLRA. We

review district court dismissals as frivolous for abuse of

discretion. McCormick v. Stalder, 105 F.3d 1059, 1061 (5th

Cir.1997).

The district court may dismiss a case as frivolous under

either the old section 1915(d) or the new section 1915(e)(2)(b)(i)

if it lacks an arguable basis in law or in fact. McCormick, 105

F.3d at 1061. In order to show that his medical care violated the

Eighth Amendment, Norton must allege that prison officials were

deliberately indifferent to his serious medical needs. Estelle v.

Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976).

Deliberate indifference encompasses only unnecessary and wanton

infliction of pain repugnant to the conscience of mankind. Id. at

105-06, 97 S.Ct. at 291-92. "Subjective recklessness," as used in

the criminal law, is the appropriate test for deliberate
 

1In July of 1994, Norton requested that prison officials grant

him sick leave from work because the muscles in his rectum would

not retract. At a subsequent doctor visit, the physician took note

of Norton's hemorrhoidal condition and prescribed Anusol and

Metamucil. The doctor did not note that Norton's rectum was

prolapsed.

In August of the same year, Norton submitted another

sick-call request, again complaining of rectal prolapse and

pain. A physician diagnosed severe rectal prolapse, but no

bleeding. The doctor prescribed Psyllium powder, Ibuprofen,

and more Anusol. The doctor also referred Norton to a

proctologist and gave him a lay-in pass for two days.

Norton was in and out of the hospital often between

September and December 1994, complaining of constant rectal

pain. On his first such visit, the physician diagnosed

external hemorrhoids, but no rectal prolapse. The doctor

continued Norton's prescription for Psyllium and Ibuprofen.

A week after this visit, Norton went to the prison infirmary

with a prolapsed rectum. He reported that he had suffered

such a condition twelve times in the previous year. Doctors

reinserted Norton's rectum and instructed him to drink water.

Two weeks later, a nurse had to reinsert Norton's rectum

again. A physician gave Norton a pass for a plastic donut for

his hemorrhoids later in October. In early November, Norton

suffered another prolapsed rectum that he could not

self-correct. A nurse issued Norton gloves and lubricant for

future self-reinsertion, prescribed Motrin, and had a nurse

reinsert Norton's sphincter.

Norton was back in the prison infirmary in December 1994,

complaining of a prolapsed rectum and requesting another

self-care kit. Infirmary staff repositioned Norton's rectum

and gave him more gloves and lubricant. In January 1995,

prison officials changed Norton's medical classification to

reflect Norton's obvious problems with anal expulsion. The

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indifference. Farmer v. Brennan, 511 U.S. 825, 838-40, 114 S.Ct.

1970, 1980, 128 L.Ed.2d 811 (1994).

It is amply clear that prison officials were neither reckless

nor deliberately indifferent to Norton's admittedly serious medical

needs. In fact, the record demonstrates that quite the opposite

was true. There is extensive evidence in the record that prison

officials afforded Norton a great deal of care and attention.1
infirmary staff gave him more self-treatment supplies two weeks

later.

Prison officials referred Norton to a specialist at the

University of Texas Medical Branch ("UTMB") in February 1995.

The physician there noted no rectal prolapse during the

evaluation, but recommended a stool softener, a lifting

restriction to no more than ten pounds, and a change in job

assignment to a position with little walking or standing. The

clinic notes from Norton's next visit to the prison clinic

reflect the recommendations given by the UTMB physician. The

prison physician gave Norton Metamucil, restricted Norton to

a lower bunk and a ground-floor cell in the prison, restricted

him to walking 100 yards, and limited him to lifting ten

pounds and sedentary work. However, the prison physician

listed Norton's "bad knee" as the reason for the restrictions.

During this time, Norton requested a new plastic donut, since

his old one had sprung a leak. The prison provided a new

donut the next day.

In April 1995, the inmate clinic reported that Norton was

doing well with his prescriptions and restrictions, although

he was still expelling his sphincter muscles during bowel

movements. The clinic gave Norton a new plastic donut and a

new self-help kit. The following month, the clinic reinserted

Norton's rectum again, gave him a new donut and some latex

gloves, and noted that his condition could worsen with

walking.

This would become something of a routine for Norton;

even with the equipment to reinsert his own rectum, on several

occasions he could not perform the repositioning on his own

and was forced to go to the clinic. Physicians and nurses in

the clinic reinserted Norton's rectum in May and June, three

times in August, and again in November and December. Norton

requested a referral to the hospital at UTMB. The prison

provided him hemorrhoidal cream and directed him to record

each episode of prolapse in order to justify a referral.

Subsequent to all of this treatment, Norton filed the

instant lawsuit claiming that the prison had been indifferent

to his medical needs. 

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The medical records indicate that Norton was afforded

extensive medical care by prison officials, who treated him at

least once a month for several years, prescribed medicine, gave him

medical supplies, and changed his work status to reflect the
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seriousness of his problem. Norton's complaints about the

treatments he has received, and the facts he alleges, simply do not

state a claim for deliberate indifference.

 Norton also alleges that medical personnel should have

attempted different diagnostic measures or alternative methods of

treatment. Disagreement with medical treatment does not state a

claim for Eighth Amendment indifference to medical needs. Young v.

Gray, 560 F.2d 201, 201 (5th Cir.1977); Spears v. McCotter, 766

F.2d 179, 181 (5th Cir.1985). The district court correctly

dismissed this action as frivolous.

C

Next, Norton loosely asserts that the erratic procedure by

which the district court denied him i.f.p. status and dismissed his

appeal violates his right to due process. During its consideration

of Norton's request to proceed i.f.p., the district court evidently

conducted a hearing on Norton's claims in order to focus the issues

in this case. Although the court session was not characterized as

a Spears hearing, it apparently served that purpose. See Spears v.

McCotter, 766 F.2d 179 (5th Cir.1985) (establishing courtroom

hearing as substitute for motion for more definite statement in pro

se cases), overruled on other grounds, Neitzke v. Williams, 490

U.S. 319, 324, 109 S.Ct. 1827, 1831, 104 L.Ed.2d 338 (1989).

In a Spears hearing, the district court may make only limited

credibility determinations, Cay v. Estelle, 789 F.2d 318, 326-27

(5th Cir.1986), overruled on other grounds, Denton v. Hernandez,

504 U.S. 25, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992), and the court
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must take care that the evidence considered is authentic and

reliable. Wilson v. Barrientos, 926 F.2d 480, 482 (5th Cir.1991).

The court should allow proper cross-examination and should require

that the parties properly identify and authenticate documents. Id.

A defendant may not use medical records to refute a plaintiff's

testimony at a Spears hearing, Williams v. Luna, 909 F.2d 121, 124

(5th Cir.1990), but the court may require the defendants in

prisoner-rights cases to construct an administrative record to

assist the court in determining whether the complaint is frivolous.

Cay, 789 F.2d at 323 n. 4; Martinez v. Aaron, 570 F.2d 317, 319

(10th Cir.1978) (establishing procedure approved in Cay ).

In this case, the district court, in compliance with Cay,

asked the defendants to prepare an administrative record, including

evidence from Norton's doctors. The defendants presented the court

with Norton's medical records and the affidavit of Dr. Owen Murray.

Dr. Murray's affidavit was not subject to cross-examination.

Norton suggests that the fact that he was unable to

cross-examine the affiant violates his right to due process.

However, the district court did not rely on Dr. Murray's affidavit

in dismissing Norton's complaint. Instead, the court decided that,

based on the medical records before it, Norton's claims were

meritless. The district court's decision to allow Dr. Murray's

affidavit to be considered in the Spears hearing, to the extent

that it was erroneous, is harmless error. Fed.R.Civ.P. 61.

D

Norton contends that this court erred in denying his request
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for a transcript of his i.f.p./Spears hearing in the district

court. A court reporter was present for the hearing, but there is

no tape of the hearing or transcript in the record.

 "Fees for transcripts furnished ... to persons permitted to

appeal in forma pauperis shall ... be paid by the United States if

... a circuit judge certifies that the appeal is not frivolous (but

presents a substantial question)." 28 U.S.C. § 753(f). In order

to succeed on a motion for production of transcripts at government

expense, a party must also show why the transcripts are necessary

for proper disposition of his appeal. Harvey v. Andrist, 754 F.2d

569, 571 (5th Cir.), cert. denied, 471 U.S. 1126, 105 S.Ct. 2659,

86 L.Ed.2d 276 (1985).

 Norton contends that the transcript was necessary to review

the imposition of a partial filing fee, to determine his indigent

status on appeal, and to substantiate his due process claim

discussed in section C of this opinion. Norton's indigence is not

disputed in this appeal, and the district court determined his

i.f.p. status based on the financial information Norton submitted

to the court. Furthermore, we have held that his due process claim

and his underlying Eighth Amendment claim are frivolous. Finally,

Norton has not shown why the transcript is necessary to challenge

the district court's order on appeal. Therefore we find that he

does not meet the requirements of section 753(f), and we affirm the

denial of his motion for production of a transcript.

E

The district court also denied Norton's motion for
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appointment of counsel, which Norton cites as error. We review a

district court's decision not to appoint counsel for abuse of

discretion. Jackson v. Dallas Police Dep't, 811 F.2d 260, 261 (5th

Cir.1986). A district court should appoint counsel in a civil

rights case only if presented with exceptional circumstances. Id.

A district court should consider four factors in making this

determination:

(1) the type and complexity of the case; (2) whether the

indigent litigant is capable of adequately presenting his

case; (3) whether the litigant is in a position to

investigate the case adequately; (4) whether the evidence

will consist in large part of conflicting testimony, thus

requiring skill in presentation and cross-examination.

Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir.1982). We have

reviewed the record in this case, and we cannot say that the

district court abused its discretion. It is clear from Norton's

medical records that his civil rights claim is meritless, and, in

the end, the presence of counsel will not change this record.

III

Therefore we AFFIRM the district court's dismissal of Norton's

civil rights claim as frivolous and AFFIRM the denial of his motion

for production of a transcript at government expense. Furthermore

we DENY as untimely Norton's motion to file a reply brief. See

Fed.R.App.P. 31(a); 5th Cir.R. 31.4.1.