IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-40709

JASON W. WITT,

Plaintiff-Appellant

v.

CHARLES BELL, Senior Warden; MARK ROBERTS, Medical Practice 

Manager University of Texas Medical Branch; STEPHEN MARTIN, LVN at 

University of Texas Medical Branch; AMANDA WHITE, LVN at University of 

Texas Medical Branch; JOYCE FRANCES, LVN at University of Texas 

Medical Branch; THOMAS MACIEL, Registered Nurse at University of Texas 

Medical Branch,

Defendants-Appellees

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 9:13-CV-55

Before KING, DAVIS, and ELROD, Circuit Judges. 

PER CURIAM:*

Jason W. Witt, Texas prisoner # 1087676, moves to proceed in forma 

pauperis (IFP) and for appointment of counsel to appeal the dismissal of his 42 

U.S.C. § 1983 suit alleging Eighth Amendment violations as frivolous and for 

* 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

January 13, 2014

Lyle W. Cayce

Clerk

 

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No. 13-40709

failure to state a claim pursuant to 28 U.S.C. § 1915A(b)(1). Witt alleged that 

medical personnel were deliberately indifferent to his serious medical needs 

after he fractured his big toe.

By moving to proceed IFP in this court, Witt is challenging the district 

court’s certification. See Baugh v. Taylor, 117 F.3d 197, 202 & n.24 (5th Cir. 

1997). This court’s inquiry into a litigant’s good faith “is limited to whether 

the appeal involves legal points arguable on their merits (and therefore not 

frivolous).” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal 

quotation marks and citation omitted). In addition, when the trial court’s 

certification decision is inextricably intertwined with the merits of the case, 

this court may dispose of the appeal on its merits. Baugh, 117 F.3d at 202 

n.24; 5TH CIR. R. 42.2

Section 1915A(b)(1) directs a district court to dismiss a prisoner’s civil 

rights complaint if it “is frivolous, malicious, or fails to state a claim upon 

which relief may be granted.” When a district court dismisses a complaint as 

both frivolous and for failure to state a claim, as herein, this court’s review is 

de novo. See Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005). With respect 

to failure to state a claim, “a complaint must contain sufficient factual matter, 

accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft 

v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citation 

omitted). A claim is facially plausible if the plaintiff pleads facts that allow a 

court “to draw the reasonable inference that the defendant is liable for the 

misconduct alleged.” Id.

The essence of Witt’s deliberate indifference claim is that the appellees 

acted with reckless disregard for his serious medical condition when they 

intentionally denied or delayed his access to care provided by a physician. Witt 

also takes issue with the magistrate judge’s characterization of his 

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constitutional claim as one of a mere disagreement with the care he was given; 

he instead contends that his claim is one of deliberate indifference on account 

of the prolonged delay of care caused by individuals who were not medically 

qualified to treat a broken toe.

Prison officials violate the Eighth Amendment’s prohibition against 

cruel and unusual punishment when they demonstrate deliberate indifference 

to a prisoner’s serious medical needs, which amounts to an unnecessary and 

wanton infliction of pain. Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). A 

prison official shows deliberate indifference if “the official knows of and 

disregards an excessive risk to inmate health or safety; the official must both 

be aware of facts from which the inference could be drawn that a substantial 

risk of serious harm exists, and he must also draw the inference.” Farmer v. 

Brennan, 511 U.S. 825, 837 (1994).

Witt has failed to plead facts that would allow a court to draw the 

reasonable inference that any of the appellees are liable for deliberate 

indifference to his serious medical needs. See Iqbal, 556 U.S. at 678. The facts 

as pleaded and deemed true establish that Witt was seen by medical personnel 

on four occasions over roughly a two-week period and was provided with overthe-counter pain relief, as well as a treatment plan that he allow the toe to heal 

on its own. Nothing in his medical records indicates that his injury was so 

serious or that his pain was so severe that it posed a risk to his health or safety. 

Regarding the seriousness of his medical condition, x-rays revealed that he had 

sustained a nondisplaced fracture that was well aligned and that callus 

formation had begun. This diagnostic impression does not suggest an injury 

that posed an excessive risk to inmate health. See Farmer, 511 U.S. at 837. 

Witt contends that the two-week delay in receiving the x-ray constituted 

deliberate indifference; however, such a delay in treatment rises to the level of 

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No. 13-40709

a constitutional violation only when the delay has resulted in substantial 

harm. See Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993). The 

medical records refute such a conclusion insofar as Witt was observed to have 

“ambulated from the clinic without difficulty” following the x-ray and despite 

the fracture. 

Witt’s allegations are, at most, allegations of medical malpractice that 

are premised on medical examinations performed by nurses who did not have, 

in his opinion, the requisite medical knowledge to treat a broken toe. Such 

allegations of negligence do not rise to the level of a constitutional violation. 

See Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006). The district court 

did not err in dismissing his suit for failure to state a claim. See § 1915A(b)(1).

In view of the foregoing, Witt’s appeal is without arguable merit and is 

thus frivolous. See Howard, 707 F.2d at 219-20. Because the appeal is 

frivolous, it is dismissed. 5TH CIR. R. 42.2. Witt’s motions for appointment of 

counsel and to proceed IFP motion are denied. The district court’s judgment 

dismissing the complaint for failure to state a claim counts as a strike for 

purposes of 28 U.S.C. § 1915(g), as does the dismissal, as frivolous, of the 

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

Witt is warned that if he accumulates three strikes, he will not be able to 

proceed IFP 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).

IFP MOTION DENIED; APPEAL DISMISSED; SANCTION WARNING 

ISSUED; MOTION TO APPOINT COUNSEL DENIED.

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