IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-60481

Summary Calendar

JOHN BARRETT,

Plaintiff-Appellant

v.

MISSISSIPPI DEPARTMENT OF CORRECTIONS; SOUTHERN MISSISSIPPI

CORRECTIONAL INSTITUTION; CHRISTOPHER EPPS; RONALD KING;

MEDICAL PROVIDERS; MARIO MARTIN, Officer; LADARRELL PERRY,

Officer,

Defendants-Appellees

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 2:06-CV-271

Before JOLLY, GARZA, and STEWART, Circuit Judges.

PER CURIAM:

*

John Barrett, Mississippi prisoner # 27578, moves for leave to proceed in

forma pauperis (IFP). The motion constitutes a challenge to the district court’s

certification that his appeal from a directed verdict in favor of defendants Epps,

King, Martin, and Perry was not taken in good faith. See Baugh v. Taylor, 117

F.3d 197, 202 (5th Cir. 1997). Our inquiry into whether this appeal is taken in

United States Court of Appeals

Fifth Circuit

F I L E D

June 3, 2011

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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good faith is limited to whether this appeal involves any nonfrivolous issues.

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

We previously granted Barrett provisional IFP status for purposes of

ordering a transcript of the bench trial in this lawsuit under 42 U.S.C. § 1983.

Now, after a review of the transcript, we withdraw the provisional grant of IFP,

deny Barrett’s IFP motion, and dismiss the appeal as frivolous.

Barrett contends that there is a nonfrivolous issue as to whether Epps and

King violated his rights under the Eighth Amendment by knowingly delaying

and refusing medical treatment for a patella fracture and hernias. He asserts

that King and Epps disregarded doctor recommended hernia surgery and

unreasonably delayed surgery on his patella. Barrett argues that the evidence

adduced at the bench trial showed that King and Epps were aware of his

fracture and hernias, but failed to act to insure that he received medically

necessary treatment for those injuries. Because Barrett raises no argument

concerning Perry’s and Martin’s alleged violations of his constitutional rights,

he has abandoned any challenge to the district court’s certification decision

regarding those defendants. Brinkmann v. Dallas County Deputy Sheriff Abner,

813 F.2d 744, 748 (5th Cir. 1987).

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, constituting an “unnecessary and wanton

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

omitted). A prison official acts with deliberate indifference if he “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); see Reeves v. Collins, 27 F.3d 174, 176-77 (5th

Cir. 1994) (applying Farmer to medical care claim). A delay of medical care may

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constitute an Eighth Amendment violation. Easter v. Powell, 467 F.3d 459, 463

(5th Cir. 2006).

Barrett has not shown that he will raise a nonfrivolous issue regarding

whether Epps and King were deliberately indifferent in denying and/or delaying

medical treatment for his leg and hernias. The record supports that the prison

medical staff made regular efforts to diagnose, treat, monitor, and control

Barrett’s injuries and that the treatment pursued by prison medical staff did not

have serious medical consequences or result in substantial harm to Barrett. See

id. To the extent that Barrett argues that the medical staff did not use the most

efficacious method of treatment (e.g., performing surgery on his leg and hernias

earlier), his disagreement with the care that he received does not establish a

claim of deliberate indifference. See Domino v. Texas Dep’t of Criminal Justice,

239 F.3d 752, 756 (5th Cir. 2001). Further, Barrett has not established that

either Epps or King, who occupied non-medical supervisory positions, was

involved in determining the medical treatment that he received or otherwise

interceded in his medical care; Barrett has not alleged or shown that King or

Epps was personally involved in delaying or denying his medical care or that

they played a role in treating him or in deciding a course of treatment for him.

See Thompkins v. Belt, 828 F.2d 298, 303-04 (5th Cir. 1987) (holding that

supervisory prison officials are liable under § 1983 only if they are personally

involved in the constitutional violation or there is a sufficient causal connection

between the supervisor’s wrongful conduct and the violation). Thus, Barrett has

failed to set forth facts or evidence establishing that King or Epps exhibited

deliberate indifference to his injuries.

Barrett also contends that the district court improperly denied his request

to have subpoenas issued to potential witnesses; erroneously denied his motion

to amend his complaint to include additional defendants; failed to insure that

the defendants produced adequate discovery; and wrongly denied his motion for

a default judgment against Nurse Barton. He also asserts that prison officials

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failed to return his legal work before trial and denied him the opportunity to

present “habit evidence” that would have supported his claims. Barrett has not

established that these grounds for appeal involve legal points arguable on their

merits. See Howard, 707 F.2d at 220.

Because Barrett has not shown that he will present any nonfrivolous issue

on appeal, his motion for leave to proceed IFP is denied, and this appeal is

dismissed as frivolous. See Baugh, 117 F.3d at 202 n.24; Howard, 707 F.2d at

220; 5TH CIR. R. 42.2. Our dismissal of this appeal as frivolous counts as a strike

for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383,

387 (5th Cir. 1996). Because Barrett has at least two prior strikes, he is now

barred from proceeding 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 WITHDRAWN; IFP MOTION DENIED; APPEAL DISMISSED;

28 U.S.C. § 1915(g) BAR IMPOSED.

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