Ricky Ricardo DANIEL, Plaintiff-Appellant, v. Joe YOUNG Defendant-Appellee, 50 F. App'x 221

ORDER Ricky Ricardo Daniel appeals pro se from a district court judgment that dismissed his civil rights case filed under the authority of Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 397, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). His appeal has been referred to a panel of this court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon examination, the panel unanimously agrees that oral argument is not needed in this case. Fed. RApp. P. 34(a).

Daniel filed his complaint in the United States District Court for the Northern District of Alabama, alleging that he had been injured in a motor vehicle accident while he was in the custody of federal marshals and that he had not received proper medical care for his injuries. A motion to transfer his case to the Western District of Tennessee was granted, insofar as his claims involved the medical treatment that he had received at the federal prison there. The district court initially dismissed the case upon transfer, as Daniel had not shown the exhaustion of all of his administrative remedies.

See 42 U.S.C. § 1997e. It subsequently granted a motion for reconsideration because Daniel submitted documents that evidenced the exhaustion of his claims. Nevertheless, the court finally dismissed the case on March 1, 2001, because these documents also indicated that he had received extensive medical care while he was incarcerated in Tennessee. See 28 U.S.C. § 1915(e)(2). It is from this judgment that Daniel now appeals. We review the dismissal of this case de novo. See McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir.1997).

Dismissal was appropriate because Daniel did not raise a claim upon which relief may be granted. See 28 U.S.C. §§ 1915(e)(2)(

B) and 1915A(b)(l). Daniel’s Eighth Amendment claim includes both an objective and a subjective component. See Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). The objective component requires a showing that he was exposed to a substantial risk of serious harm. See id. The subjective component requires a showing that the defendants acted with deliberate indifference or recklessness, that is more than mere negligence. See id. at 834-37; Sanderfer v. Nichols, 62 F.3d 151, 154 (6th Cir.1995).

Daniel does not dispute the district court’s detailed description of the pertinent medical record, which indicated that he had a history of knee and low back problems, that he had been examined on numerous occasions, and that he had received prescriptions, injections, blood tests, x-rays and other tests for his condition. Under these circumstances, we conclude that the defendants have provided Daniel with extensive medical treatment for his injuries, even though he may be dissatisfied with the treatment that he has received.

Thus, he has alleged no more than a medical malpractice claim which does not rise to the level of a viable Eighth Amendment claim. See Durham v. Nu’Man, 97 F.3d 862, 868-69 (6th Cir.1996); Sanderfer, 62 F.3d at 154-55. Daniel also argues that the district court abused its discretion by not advising him to amend his complaint. However, the court did allow Daniel to amend the complaint by adding several new defendants and by submitting evidence of administrative exhaustion. Moreover, the courts “have no discretion in permitting a plaintiff to amend a complaint to avoid a sua sponte dismissal.

If a complaint falls within the requirements of § 1915(e)(2) when filed, the district court should sua sponte dismiss the complaint.” McGore, 114 F.3d at 612. Thus, the court properly dismissed Daniel’s case without allowing him an opportunity to further amend his complaint. Accordingly, the district court’s judgment is affirmed. Rule 34(j)(2)(C), Rules of the Sixth Circuit.