Barry Kirven v. Rick Thaler ( 2011 )

Case: 10-20822 Document: 00511503663 Page: 1 Date Filed: 06/09/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 9, 2011
No. 10-20822
Summary Calendar Lyle W. Cayce
Clerk
BARRY KIRVEN,
Plaintiff-Appellant
v.
RICK THALER; CORRECTIONAL OFFICER REILLY, Warden of Huntsville
Unit; JAMIE WILLIAMS; DR. E. JULYE, Doctor of Huntsville Unit,
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:09-CV-1440
Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Barry Kirven, Texas prisoner # 1473071, filed the
instant civil rights complaint, seeking redress for injuries allegedly suffered as
a result of constitutionally inadequate medical care. Kirven’s complaint
concerned the treatment he received in connection with a growth on his toe,
which was first detected by prison medical personnel in December 2007. The
growth gradually increased in size, and Kirven’s toe was amputated in March
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 10-20822 Document: 00511503663 Page: 2 Date Filed: 06/09/2011
No. 10-20822
2009. The district court dismissed the complaint as frivolous after reviewing
Kirven’s medical records.
An in forma pauperis (IFP) complaint may be dismissed as frivolous under
28 U.S.C. § 1915(e)(2)(B)(i) if it lacks any arguable basis in law or fact. Norton
v. Dimazana, 122 F.3d 286, 291 (5th Cir. 1997). We review a § 1915 dismissal
as frivolous for abuse of discretion. Id.
Kirven contends that, given the size and the rate of growth of the mass on
his toe, the delay in surgery constitutes deliberate indifference to his serious
medical need. As the district court determined, however, from December 2007
through March 2009, Kirven received ongoing medical evaluation and treatment
for his condition, including care provided by Dr. E. Julye. The medical care
received by Kirven included physical examinations, x-rays, MRIs, medication,
resection, and ultimately surgery to amputate the toe, followed by post-surgical
care. Kirven’s contention that amputation of his toe would have been
unnecessary but for the delays in his treatment is essentially a claim of neglect
or medical malpractice. Such claims do not rise to the level of an Eighth
Amendment deliberate-indifference violation. See Varnado v. Lynaugh, 920 F.2d
320, 321 (5th Cir. 1991).
As Kirven cannot demonstrate that he was denied constitutionally
adequate medical care, he cannot establish that any policy or practice of
supervisory officials Nathaniel Quarterman, C. O’Reilly, or Jamie Williams
resulted in the violation of his constitutional rights. See Bustos v. Martini Club,
Inc., 599 F.3d 458, 468 (5th Cir. 2010). Because Kirven pleaded his best case,
the district court did not reversibly err by dismissing his action without
providing Kirven an opportunity to amend his complaint. See Bazrowx v. Scott,
136 F.3d 1053, 1054 & n.7 (5th Cir. 1998); Jacquez v. Procunier, 801 F.2d 789,
793 (5th Cir. 1986).
The district court’s dismissal of Kirven’s complaint as frivolous counts as
one strike for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103
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Case: 10-20822 Document: 00511503663 Page: 3 Date Filed: 06/09/2011
No. 10-20822
F.3d 383, 387-88 (5th Cir. 1996). Kirven is hereby warned that if he
accumulates three strikes he will no longer be allowed to proceed in forma
pauperis 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).
AFFIRMED; SANCTION WARNING ISSUED.
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