* Local Rule 47.5 provides: “The publication of opinions that

have no precedential value and merely decide particular cases on

the basis of well-settled principles of law imposes needless

expense on the public and burdens on the legal profession.”

Pursuant to that Rule, the Court has determined that this opinion

should not be published.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 95-60199

Summary Calendar

__________________

THOMAS LEE,

Plaintiff-Appellant,

versus

EDDIE LUCAS, Commissioner,

ET AL.,

Defendants-Appellees.

______________________________________________

Appeal from the United States District Court for the

Southern District of Mississippi

(2:92 CV 344 PS)

______________________________________________

August 9, 1995

Before GARWOOD, HIGGINBOTHAM and DAVIS, Circuit Judges.

PER CURIAM:*

Plaintiff-appellant Thomas Lee (Lee) appeals the district

court's dismissal of his 42 U.S.C. § 1983 suit as frivolous

pursuant to 28 U.S.C. § 1915(d). We affirm.
1 In a January 25, 1994, letter to the district court, Lee

stated that, on December 16, 1994, he was transferred to the

Mississippi State Penitentiary in Parchman, Mississippi.

2 Lee asserts that this response indicates record tampering.

2

Facts and Proceedings Below

Lee, an inmate in the Southern Mississippi Correctional

Institution (SMCI) in Leakesville, Mississippi, filed this section

1983 suit against various prison officials on October 5, 1994,

alleging that Defendants denied him proper medical care and that

they harassed him in retaliation for filing a prison grievance.1

The district court granted Lee leave to proceed in forma pauperis.

In his pro se complaint, Lee alleges that he filed internal

grievances asserting that he had received inadequate medical

treatment and that Defendants had denied his grievances on the

ground that prison records reflected that he had not requested

medical care.2

Although Lee's complaint initially states that he was denied

medical care, he also alleges that he began seeing Dr. Serapio

(Serapio), the SMCI medical director, in March 1992 for back pain.

According to Lee's complaint, Serapio ordered x-rays for his back,

which revealed soft tissue damage. Lee alleges that Serapio then

ordered Lee to undergo leg x-rays and blood and urine analyses to

determine the cause of the soft tissue damage, but Lee allegedly

has never received the results of these tests from Serapio. Lee

alleges that he requested to be sent to the medical center in

Jackson, Mississippi, for a CAT scan and a proper diagnosis but

that Serapio refused. In addition, Lee alleges that Serapio
3

refused to refill his pain medication and eventually replaced it

with a less effective medication.

On December 1, 1993, Dr. Harry Turner (Turner), a radiologist,

took x-rays of Lee's back and concluded that there were no

abnormalities. According to Lee's complaint, this diagnosis

"clearly shows that Dr. Turner deliberately fail[ed] in his

medical, professional and ethical judgment by not recommending or

suggesting a medical follow up." Lee also asserts that Betty

Creech (Creech), the SMCI administrative remedy program

administrator, acted maliciously and deliberately in denying his

medical grievances by giving his personal medical information to

the SMCI staff and by extending the deadline for Defendants to file

a response to these grievances.

On March 15, 1994, the district court determined that Lee's

complaint lacked any arguable basis either in law or in fact and

therefore dismissed it without prejudice under 28 U.S.C. § 1915(d).

Lee filed a timely notice of appeal. 

Discussion

Dismissal of an in forma pauperis petition under 28 U.S.C. §

1915(d) is appropriate where the district court is satisfied that

the action is frivolous. An action is frivolous "where it lacks an

arguable basis either in law or in fact." Neitzke v. Williams, 109

S.Ct. 1827, 1831-32 (1989); see also Booker v. Koonce, 2 F.3d 114,

115-16 (5th Cir. 1993). We review a district court's section

1915(d) dismissal for abuse of discretion. Mackey v. Dickson, 47

F.3d 744, 745 (5th Cir. 1995).
3 Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).

4 In his brief on appeal, Lee moves for a physical exam pursuant

to Fed.R.Civ.P. 35(a), arguing that he is entitled to another

opinion on the x-rays taken of his back. We deny this frivolous,

4

Lee argues that the district court abused its discretion by

dismissing his suit without conducting a Spears3 hearing. To

prevail on a section 1983 claim for deprivation of medical care, a

prisoner must prove that care was denied and that this denial

constituted "deliberate indifference to serious medical needs."

Estelle v. Gamble, 97 S.Ct. 285, 291 (1976); see Johnson v. Treen,

759 F.2d 1236, 1238 (5th Cir. 1985). This Court has held that the

"legal conclusion of `deliberate indifference' . . . must rest

on facts clearly evincing wanton actions on the part of the

defendants." Johnson, 759 F.2d at 1238. "Unsuccessful medical

treatment does not give rise to a § 1983 cause of action. Nor does

mere negligence, neglect or medical malpractice." Varnado v.

Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991) (citations and internal

quotation marks omitted).

The thrust of Lee's medical care claim is that the medication

prescribed was inadequate and that Defendants failed to perform the

proper diagnostic tests. He has not alleged that Defendants'

actions in any way affected his physical condition. Based on our

review of the record, we find that Lee's medical care claim amounts

to no more than allegations of negligence. Because negligence

claims are not cognizable under section 1983, id., the district

court did not abuse its discretion in dismissing his medical care

claim under section 1915(d).4
unauthorized motion. 

5 For the first time in his brief on appeal, Lee alleges various

additional instances of harassment. First, he asserts that

Defendants influenced other SMCI employees and gang members to

harass him and to suppress his mail and medication. He also

contends that he received four transfers, was put in segregation

for 30 days, and put in punitive segregation for 120 days. In

addition, Lee asserts that he was transferred to the main

penitentiary in Parchman, Mississippi, and placed in lock down so

that his mail and legal work could be read. Finally, Lee alleges

5

Lee next argues on appeal that he was harassed because he

filed grievances concerning his medical care. It is well

established that an inmate may not be retaliated against because he

exercises his right of access to the courts. Gibbs v. King, 779

F.2d 1040, 1046 (5th Cir.), cert. denied, 106 S.Ct. 1975 (1986).

However, "if the conduct claimed to constitute retaliation would

not, by itself, raise the inference that such conduct was

retaliatory, the assertion of the claim itself without supporting

facts is insufficient." McCoy v. Lynaugh, No. 94-10631, slip op.

at 3 (5th Cir. Nov. 18, 1994) (unpublished) (citing Whittington v.

Lynaugh, 842 F.2d 818, 819 (5th Cir.), cert. denied, 109 S.Ct. 108

(1988)). We note that Lee only mentioned two acts of harassment in

his complaint: "suppressing respondent's response past deadlines"

and the submission of his personal medical information to the SMCI

staff. The extension of a deadline for a response and the

submission of medical records to the prison staff after a prisoner

has filed a grievance do not, by themselves, raise an inference

that such conduct was retaliatory. This allegation thus lacks an

arguable basis in law or fact, and the district court did not abuse

its discretion in dismissing it under section 1915(d).5 
that he was prescribed an experimental drug not commonly used for

his type of ailment. Because Lee did not raise these claims in the

district court below, we will not consider them on appeal. See

Varnado, 920 F.2d at 321. 

6

Conclusion

For the foregoing reasons, the judgment of the district court

is 

AFFIRMED.