## IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________



### m 00-10553

_______________



### E LBERT 

### S ILAS 

### G REEN



### ,

Plaintiff-Appellant,

VERSUS



### H ENDRICK 

### M EDICAL 

### C ENTER 

### ; U NIT 

### H EALTH 

### A DMINISTRATOR 

### ;

NFN C OLLIER



### , D.D.S.; NFN M RS



### . B ROWN 

### ;

R.O. L AMPERT



### , S ENIOR 

### W ARDEN 

### ; J AMES 

### D UKE



### , A SSISTANT 

### W ARDEN 

### ;

R OCHELLE 

### M C 

### K

INNEY 

### , R.N. M.A.,

Defendants-Appellees.

_________________________

Appeal from the United States District Court

for the Northern District of Texas

(1:98-CV-131)

_________________________ March 7, 2001

Be f ore REAVLEY, SMITH, and DeMOSS,

Circuit Judges.

JERRY E. SMITH, Circuit Judge: * Elbert Green, an inmate who since has been

released from pris on, sued, p ro se and in

forma paup eris (“IFP”), Hendrick Medical

Center, which is the medical contractor for inmates of the John Middleton Transfer Facilit y,

and various administrators, alleging violations

of his Eighth Amendment and due process * Pursuan t to 5 TH C IR. 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 5 TH C IR

. R.

(continued...) * (...continued)

47.5.4.2

ri ghts. The district court dismissed these

claims as frivolous. We affirm in part, vacate

in part, and remand for further proceedings.

I.

Green alleged viol a tions of his civil rights

from alleged deliberate indifference to his dental needs. During meals in the facility, officers

forced inmates to eat quickly. Because Green

had loose dentures, eating so quic kly caused

painful lacerations, swelling, and bleedi n g in

his gums. He alleges that t his condition

caused him to forego one meal each day.

When Green entered the John Mi ddl eton

Transfer Facility in October 1996, Dr. Collier,

the dentist, advised him to replace or reline his

dentures. Green submitted a grievance

seeking treatment for the condition, but Collier

and t he warden advised Green that he had to

be in the Texas Department of Criminal Justice

(“TDCJ”) for twelve months to be eligi ble to

get his dentures reli ned. The warden

suggested that Green obtain a blended food

pass if he was having trouble eating, but Green

appears to have refused, calling the pass “unnecessary punishment” and “tactical delay.”

He submitted grievances to no avail.

Green sought declaratory relief and

monetary damages, contending that his lack of

dental treatment violates the Eighth

Amendment. The district court referred the

case to a m agist rate judge, who furnished

Green with a questionnaire in lieu of a hearing.

In his responses to the ques t ionnaire, Green

noted that he contr o lled his loose dentures

with adhesive and had not seen a dentist since

the early 1970’s. He further explained that the

Marshall Formby State Jail, his next facilit y,

replaced his dentures when twelve months had

elapsed. Green also presented a copy of the

TDCJ’s dental services policy, which set forth three levels of urgency for dental care. 1

The case was transferred to another

magistrate judge, who di smissed it as

frivolous. Green objected, stating that he had

not consented t o resolution by a magistrate

judge. The district court agreed and issued its

own dismissal of the claim as frivolous. The

court found that Green w a s “seen by the

medical department eleven times” between his

entry i nt o TDCJ and when he received new

dentures. It concluded that the defendants had

not acted with deliberate indifference and that

any harm Green had experienced resulted from

negligence only. Green appeals, claiming the

court erred in dismissing his claim as frivolous,

because it (1) failed to construe his pleadings

liberally and (2) relied on medical records developed after the fact of the complaint and not

provided to him, in violation of the Due

Process Clause.

II.

A district court must dismiss an IFP suit “if

[it] determ

ines that the action is frivolous or

malicious.” 28 U.S.C. § 1915(e)(2)(B)(i). A

claim is frivolous if it lacks any arguable basis

in law or fact. Harris v. Hegmann, 198 F.3d

153, 156 (5th Cir. 1999). “A complaint lacks

an arguable basis in law if it is based on an

indisputably meritless legal theory, such as if

the complaint alleges violation of a leg a l

interest which . . . does not exist.” Harper v.

1 “Priorit y I needs are emergency or urgent

problems including traumatic injuries, severe pain,

infection, and swelling.” Priority II needs include

“[f]ull dentures or false teeth

. . . for offenders with

few teeth or no teeth at all.” Priority III care is

av ailable after an inmate has served at least six

months in the TDCJ system. Priority III care, such

as cleanings, fillings, and partial dentures, are

available after twelve months.3

Sh owers, 1 74 F.3d 716, 718 (5th Cir. 1999).

“A co mplaint is factually frivolous when the

facts alleged are fantastic o r delusional

scenarios or the legal the ory upon which a

com plaint relies is indisputably meritless.”

Harris, 198 F.3d a t 156 (internal quotations

omitted). We review a dismissal of an IFP suit

as frivolous for abuse of

discreti on. B erry v.

Brady, 192 F.3d 504, 507 (5th Cir. 1999).

A.

Green contends the court did not construe

his pleadings liberally. “[C]ourts must liberally

construe pro se ple adings.” U nited States v.

Riascos, 76 F.3d 93, 94 (5th Cir. 1996). Construing Green’s pleadings li berally, he alleges

that th e John Middleton facility treated his

condition as a Priority III when he had a

Priority I emergency. Green believes that his

“severe pain” and “swelling” bring him within

the ambit of Priority I, while Priority III should

be reserved for “cosmetic” treatments.

The distr i ct court’s opinion essentially addresses this issue. In discussing t he standard

applicable t o Green’s Eighth Amendment

claim, the court notes:

No t every claim of inadequate or

imp r oper medical treatment is a

violation of the Constitution. Estelle v.

Gamble, 429 U.S. 97, 105-07 [(1976)].

“In order to sta t e a cognizable claim, a

prisoner mu st allege acts or omissions

sufficient ly harmful to evidence

deliberate indifference t o seri ous medical

needs.” Id. at 106.

The Supreme Court has defined deliberate indifference as “subjective recklessness” and:

[A] prison official c a nnot be

found liable under the Eighth Amendment . . . unless 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, 114 S. Ct.

1970, 1980 (1994).

“It i s firmly established that

negligent or mistaken medical treatment

or judgment does not implicate the

eighth amendment and does not provide

t he basis for a civil rights action.”

Graves v. Hampton, 1 F.3d 315, 319

(5th Cir. 1993).

Even though the district co urt di d not

directly ad dress whether the prison officials

misprioritized Green’s condition, the decision

t o classify a medical problem as a Priority II I

rather than a Priority I is part of the d octor’s

diagnosis and recommendation for treatment.

The ab o ve reasoning, then, applies the same

to the issue of prioritization as it does to

Green ’s more general claim of deliberate indifference. Thus, Green gains nothing by a

more liberal construction, and the district court

did not err in that regard. The question

remains, however, whe t her the court erred in

finding the claim frivolous.

B.

1.

Green sued several of the prison o fficials in

their supervisory capacities. Supervisory offic ials are not liable for the actions of their

subordinates on

a theory of vicarious liability

or respondeat superior. T hompk ins v. Belt,

828 F.2d 298, 303 (5th Cir. 1987).4

“Su pervisory officials may be held liable only

if: (i) they affirmat ively participate in acts that

cause constitutional deprivations; or (ii) they

implement unconstitutional policies that

causally result in plaint iff’s injury.” M ouille v.

City of Live Oak, 977 F.2d 924, 929 (5th Cir.

1993).

With respect to Warden Lampert, Assistant

Warden Duke, Nurse McKinney, an d Mrs.

Brown, Green has alleged only tha t they denied his grievances. A denial of a prison grievance, even when o fficials fail to follow internal

regulation s is not tantam ount to a constitutional violation. S ee Hernandez v. Estelle,

788 F.2d 1154, 1158 (5th Cir. 1986).

Moreover, Green has not alleged that these

defendants c reat ed the policy in question.

Thus, the district court did not abuse i ts

discretion in findin g that Green’s description

of these defendants’ involvement in his dental

care did not establish liabilit y under § 1983.

The court correctly dismissed these claims as

frivolous.

2.

Green contends t hat forcing inmates to

finish their meals in five to eight minutes violates the Eighth Amendment. He intentionally

did not name any of the dining hall supervisors

in his complaint t hat the district court

dismissed as frivolous; therefore, he challenges

only the constitutionality of the policy. 2

The Eighth

Amendment requires that inmates b e provided well-balanced meals with

sufficient nutritional value to preserve health.

Be r ry, 192 F.3d at 507. If, however, a deprivation of food does no t deny a prisoner

the “minimal meas u re of life’s necessities,” it

does not violate the Constitution. I d. (quoting

Talib v. Gilley, 138 F.3d 211, 213 n.3 (5th

Cir. 1998). Even missing fift y meals in five

months does no t violate the Constitution; indeed, two meals per day may be adequate. I d.

Green has no constitutionally-protected right

to consume his meal s at a rate that pl eases

him.

To the extent that eating quickly

exacerbated his medical condition, Green’s

complaint is not with the dining hall policy, but

with his medical treatment. Prison officials offered Green a blended food pass, which h e

refused. An inmate’s disagreement with medical treatment does not give rise to a constitutional claim. M

artinez v. Turner, 977

F.2d 421, 423 (8th Cir. 1992). Thus, the court

did not err in dismissing this portion of

Green’s claim as frivolou s, because Green

seeks to protect a legal interest that does not

exist.

3.

C o llier, by contrast, had personal

involvement in

examining Green and denying

him treatment. Green argues that Collier was

deliberately indifferent to his medical needs, by

refusing to replace or reline his dentures sooner and by refusing to treat his sore gums. To

succeed on this claim, Green must show that

Collier was deliberately indifferent to his serious med ical needs, knowingly inflicting wanton and unnecessary pain. S ee Stewart v. Murphy, 174 F.3d 530, 53 3 (5th Cir.), c ert.

denied , 528 U.S. 906 (1999). Inadequate

treatment may r i se to the level of a

con st it utional violation, but negligent care or

malpractice does not. Id. at 534.

Although this standard raises a high bar to 2 The court dismissed the claim as frivolous in

part becaus e Gr een did not name the dining hall

su pervisors in his complaint. We may affirm the

district court, however, on any basis supported by

the record. Berry, 192 F.3d at 507.5

prisoners’ claims, the facts Green alleges may

support a claim under the Eighth Amendment.

F or the dismissal to be proper, Green’s claim

must lack an arguable basis in law or fact; it

must rest on the violation of a legal interest

t hat does not exist or allege baseless fact s.

Berry, 192 F.3d at 507. Green has alleged that

Collier examined him but ref used to provi de

him with new or relined dentures or to treat his

gums. Although “a prison official is not liable

for the denial of medical treatment ‘unless the

official knows of and disregards an excessive

risk to inmate health or safety,’” Harris, 198

F.3d at 159 (citing Stew art, 174 F.3d at 534),

G reen’s claim is not “indisputably meritless.”

Harper, 174 F.3d at 718.

Depri v ation of dental treatment may

constitute delibe r ate indifference. In H arris,

198 F.3d at 159-60, we recognized that a

pri so ner presented a cognizable Eighth

Amendment claim where pr iso n officials

denied him access to dental care for his broken

jaw and forced him to eat soli d food. One

circuit countenanced an Eighth Amendment

claim wher e an inmate’s lost dentures caused

him bleeding gums, int erfered with his ability

to eat, and permanently damaged his teeth, but

prison o fficials failed to relieve his pain or

prescribe a soft food diet. S ee Hunt v. Dental

Dep’t, 865 F.2d 198, 200 (9th Cir. 1989).

In Chance v. Armstrong, 143 F.3d 698 (2d

Cir. 1998), the court held that a prison

dentist’s refusal to fill a cavity rose to the level

of deliberat e indifference, because the tooth

deteri orated to the point that it had to be

pulled. The C

hance court found sig n ificant

that the prisoner’s inabilit y to chew properly

caused e xt reme pain and impaired his daily

activities. I

d. at 702-03. Similarly, the court in

Harrison v. Barkley, 219 F.3d 132, 137-39

(2d Cir. 2000), found that a prison dentist was deliberately indifferent to an inmate’s medical

n eeds when he left a cavity untreated for one

year after discovering the condition. 3

These cases demonstrate that in closely analogous fact situations, courts have recognized

claims of deliberate indifference. Certainly, the

district court might have distinguished Green’s

case from the aforementioned examples on the

basis that he refused the pa lliative measure

offered him; indeed, Green never asserted that

the blended food would not alleviate his pain.

The court also might find that Green’s

condition lacked suf

fi ci ent degenerative impact

to require Collier to treat him more quickly.

Additionally, the court might construe

C o llier’s actions as merely negligent treatment.

As the district court noted, “[u]nsuccessful

medical trea t ment does not give rise to a

§ 1983 cau s e of action,” nor does “mere

negligence, neglect, or medical malpractice.”

Varnando v. Lynaugh, 920 F.2d 320, 321 (5th

Cir. 1991). 4

This analysis, though, indicates that Green

has alleged facts suffi cient to raise an Eighth

Amendment issue about which reasonable legal minds could differ. Therefore, this claim is

not, on its face, indisputably meritl ess. The

court may have erred in dismissin g t his claim

as frivolous.

3 S ee also Williams v. Scully, 552 F. Supp.

431, 432 (S.D.N.Y. 1982) (finding that making an

inmate wait 51⁄2 months for a cavi ty filling

presented an issue of material fact as to deliberate

indifference).

4 “Medical malpractice does not become a constitutional violation merely because the victim is a

prisoner.” E

stelle v. Gamble, 429 U.S. 97, 106

(1976).6 III.

The district court correctly noted that

“[m]edical records of sick calls, examinations,

diagnoses, and medications may rebut an

i nm ate’s allegations of deliberate indifference.”

Banuel os v. McFarland, 4 1 F.3d 232, 235

(5th Cir. 1995). If the court relied on properly

authenticated medical record s from the John

Middleton facilit y, then it may have properly

dismissed the claim. Green argues, however,

that the court improperly relied o n medical

records from the Marshall Formby facilit y, the

prison to which he was transferred fo llowing

his st ay at John Middleton. Green maintains

that after the i nitial examination, he received

no medical treatment at John Middleton; these

records do cument treatment after the time of

the alleged Eighth Amendment violation.

A court may base a dismissal under 28

U.S.C. § 1915(e) “on medical or other prison

r ecords if they are adequately identified and

authenticated .” B anuelos v. McFarland, 41

F.3d 232, 234 (5th Cir. 19 95). Al though we

grant wide discretion to the district c ourt to

dismiss prisoners’ IFP complaints as frivolous,

the court must use aut hentic and reliable evidence. If such documents are not adequately

authenticated, judgments that rely on them

must be vacated. W

ilson v. Barrientos, 926

F.2d 480, 483 (5th Cir. 1991).

The court found t hat “[b]etween the time

plaint iff entered [the Texas prison system] and

the time he received his new dentures, he was

see n by the medical department eleven times

and was scheduled for thirteen meetings.” The

court does not indicate from which facilit y

these records came. These documents are not

part of the record on appeal; without them, we

cannot determine the cred i bilit y either of

Green or of the records. “[I]f a prisoner’s

version of the facts underpinning a civil rights action

. . . is inherently plausible and internally

c onsistent, a court may not for purposes of a

[§ 1915(e)] dismissal simply choose to believe

conflicting material facts al l eged by the

defendants. It is only for the trier of fact to

dec ide which party is more believable.”

W esson v. Oglesby, 9 10 F.2d 278, 282 (5th

Cir. 1990).

Moreover, if these records were presented

during the magistrate judge’s factfinding process in accordance with S pears v. McCotter,

766 F.2d 17 9 (5th Ci r. 1985), o verruled on

othe r grounds by Denton v. Hernandez, 5 04

U.S. 25 (1992), the district court arguably

used the documents impermissibly to refute

Green’s testimony. S ee Norton v. Dimazana

, 122 F.3d 286, 292 (5th Cir. 1997) (noting that

a defendant may not use medic al records to

defeat a prisoner’s testimony at a Spears hearing). In a S

pears hearing, “the court sho uld

allow proper cross-examination.” Id. G reen

asserts that the court did not allow him to

review or refute this evidence against him.

IV.

Without more before us, we can n ot

determine conclusively

whether the district

court improperly used and re lied on these

records. Further, without resolving the

qu est io n of fact as to the institution whence

t he records come, we cannot decide wheth e r

the court properly dismissed Green’s claim as

frivolous.

Accordingly, we AFFIRM the dismissal of

Green’s claims against Warden Lampert, Assistant Warden Duke, Nurse McKinney, and

Mrs. Brown. We AFFIRM the dismissal of

the claim that the prison dining policy violated

Green’s Eighth Amendment rights. We

VACATE and REMAND the dismissal of the

claims against Dr. Collier for factual findings7

consistent with this opinion. We express no

view as to the appropriate ultimate resolution

of these claims.