IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-41220

Summary Calendar

KENNETH IVORY GANTHER,

Plaintiff - Appellant

v.

FRED DALTON, Captain; J W MOSSBARGER, Unit Warden; J.R. GUYTON,

Assistant Regional Director Region II,

Defendants - Appellees

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 3:08-CV-220

Before BARKSDALE, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:

*

Kenneth Ivory Ganther, Texas inmate #1266740, appeals, pro se, the

dismissal of his 42 U.S.C. § 1983 action for failure to state a claim for which

relief could be granted, as well as the denial of his motions for judgment as a

matter of law and for summary judgment. He contends defendants were

deliberately indifferent to his medical needs in violation of the Eighth

United States Court of Appeals

Fifth Circuit

F I L E D

September 24, 2010

Lyle W. Cayce

Clerk

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.

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No. 09-41220

Amendment because they refused to provide him with a new pair of high-top

work boots during the period of 10 June 2008 through 16 January 2009.

Although Ganther had a medical pass to have his prison-issued boots

replaced with new ones, his request was denied by defendants, pursuant to

prison policy that boots be issued only to field workers. Ganther’s assignment

was instead in the kitchen.

Our court reviews de novo denials of motions for judgment as a matter of

law, and for summary judgment, and dismissals for failure to state a claim. E.g.,

Arsement v. Spinnaker Exploration Co., 400 F.3d 238, 248 (5th Cir. 2005);

Gutierrez v. City of San Antonio, 139 F.3d 441, 444 (5th Cir. 1998); Black v.

Warren, 134 F.3d 732, 733-34 (5th Cir. 1998).

The Eighth Amendment protects prisoners from “the wanton and

unnecessary infliction” of injury that results in “pain without any penological

purpose” or an “unquestioned and serious deprivation of basic human needs”.

Rhodes v. Chapman, 452 U.S. 337, 347 (1981) (citing Estelle v. Gamble, 429 U.S.

97, 103 (1976); Hutto v. Finney, 437 U.S. 678 (1978)). A violation of the Eighth

Amendment occurs only when: there is a deprivation that is “objectively,

‘sufficiently serious’”, resulting “in the denial of ‘the minimal civilized measure

of life’s necessities,’” . . . and the “prison official . . . [has] a ‘sufficiently culpable

state of mind’”. Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting Wilson

v. Seiter, 501 U.S. 294, 297-98 (1991); Rhodes, 452 U.S. at 347). In Farmer, the

Court held that a prison official acts with deliberate indifference to inmates’

health “only if he knows that [they] face a substantial risk of serious harm and

disregards that risk by failing to take reasonable measures to abate it”. Id. at

847. The prisoner must “submit evidence that prison officials refused to treat

him, ignored his complaints, intentionally treated him incorrectly, or engaged

in any similar conduct that would clearly evince a wanton disregard for any

serious medical needs”. Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006)

(internal quotations omitted).

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No. 09-41220

Given the prison’s policy of issuing boots only to field workers and

Ganther’s assignment to the kitchen, defendants’ denial of boots was not conduct

that was “‘causeless[], without restraint, and in reckless disregard’” of Ganther’s

health such that it could be termed wanton in violation of the Eighth

Amendment. Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985) (quoting 30

AMERICAN AND ENGLISH ENCYCLOPEDIA OF LAW 2-4 (2d ed. 1905) (footnotes

omitted)). For purposes of receiving the relief requested in this appeal, Ganther

fails to show that defendants acted with the knowledge that denial of boots

would pose to him a substantial risk of serious harm. The denial of boots, based

upon prison policy, was at most negligence, which is not actionable. See Gobert,

463 F.3d at 346.

Because reasonable jurors could have arrived at a verdict contrary to

Ganther’s position and because there was a genuine issue of material fact, the

district court did not err by dismissing Ganther’s motions for judgment as a

matter of law and for summary judgment. See Arsement, 400 F.3d at 248-49;

Gutierrez, 139 F.3d at 444. Additionally, Ganther’s complaint failed to allege

facts sufficient to support a conclusion of deliberate indifference. Thus, he fails

to show that the district court erred by dismissing his § 1983 action for failure

to state a claim. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007).

AFFIRMED.

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