Noel Harris v. R Bigs, et al

Filing 511139577

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Noel Harris v. R Bigs, et al Doc. 511139577 Case: 09-40629 Document: 00511139577 Page: 1 Date Filed: 06/11/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 09-40629 S u m m a r y Calendar June 11, 2010 Lyle W. Cayce Clerk N O E L S. HARRIS, P la in t if f -A p p e lla n t , v. R N BIGS; Sheriff J B SMITH; SMITH COUNTY MEDICAL CARE SERVICE SYSTEM , D e fe n d a n t s -A p p e lle e s . A p p e a l from the United States District Court fo r the Eastern District of Texas U S D C No. 6:08-CV-471 B e fo r e JOLLY, WIENER, and ELROD, Circuit Judges. P E R CURIAM:* N o e l S. Harris, Texas prisoner # 1451879, has appealed the dismissal of h is civil rights complaint as frivolous pursuant to 28 U.S.C. 1915A(b)(1). Harris consented to entry of judgment by the magistrate judge. Harris contends t h a t the magistrate judge erred in dismissing the complaint as frivolous, in d e n y in g his pending motions summarily, and in failing to compel responses to h is discovery requests. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Dockets.Justia.com Case: 09-40629 Document: 00511139577 Page: 2 No. 09-40629 Date Filed: 06/11/2010 U n d e r 1915A, a district court is required to "review, before docketing, if fe a s ib le or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or o ffic e r or employee of a governmental entity." 28 U.S.C. 1915A(a). The court s h o u ld dismiss such a complaint if it is "frivolous, malicious, or fails to state a c la im upon which relief may be granted." 1915A(b)(1). "A complaint is fr iv o lo u s if it lacks an arguable basis in law or fact, such as when a prisoner a lle g e s the violation of a legal interest that does not exist." Martin v. Scott, 156 F .3 d 578, 580 (5th Cir. 1998) (citation omitted). We review 1915A dismissals a s frivolous for an abuse of discretion. Id. "A district court abuses its discretion if it bases its decision on an erroneous view of the law or on a clearly erroneous a s s e s s m e n t of the evidence." Esmark Apparel, Inc. v. James, 10 F.3d 1156, 1163 (5 t h Cir. 1994). H a r r is contends that Smith County Jail Intake Registered Nurse Bigs (t r u e name Patricia Ann Jessie) acted with deliberate indifference to his need for m e d ic a t io n to treat his eye, on which he had recently had emergency surgery. Jessie testified at a hearing convened in accordance with Spears v. McCotter, 766 F .2 d 179 (5th Cir. 1985), abrogated on other grounds, Neitzke v. Williams, 490 U .S . 319 (1989), that she contacted the office of Harris's treating physician and w a s told by a nurse not to give Harris medication. P r is o n officials violate the constitutional proscription against cruel and u n u s u a l punishment when they demonstrate deliberate indifference to a p r is o n e r 's serious medical needs, constituting an unnecessary and wanton in fl i c t io n of pain. See Wilson v. Seiter, 501 U.S. 294, 302-03 (1991). Unsuccessful medical treatment, acts of negligence, neglect, or medical m a lp r a c t ic e are insufficient to give rise to a 42 U.S.C. 1983 cause of action. Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991). A prisoner's d is a g r e e m e n t with his medical treatment is not actionable under 1983 absent 2 Case: 09-40629 Document: 00511139577 Page: 3 No. 09-40629 Date Filed: 06/11/2010 e x c e p t io n a l circumstances. Id.; see Jackson v. Cain, 864 F.2d 1235, 1242 (5th C ir . 1989). H a r r is contends, correctly, that Jessie was advised of his serious medical c o n d itio n and that he received no additional treatment for that condition while h e was incarcerated at the Smith County Jail. The record reflects also, however, t h a t Harris did not request any additional treatment while he was at the Smith C o u n ty Jail, and that Jessie followed jail policy in contacting the treating p h y s ic ia n 's office and in following instructions to provide no further treatment. Even assuming arguendo that Jessie was negligent, such negligence does not c o n s t it u t e a constitutional violation. See Varnado, 920 F.2d at 321. Harris has n o t shown that the magistrate judge abused her discretion in dismissing the c o m p la in t against Jessie as frivolous. See Martin, 156 F.3d at 580. H a r r is also has not shown that the magistrate judge abused her discretion in allowing Jessie to give hearsay testimony. See Wilson v. Barrientos, 926 F.2d 4 8 0 , 482-83 (5th Cir. 1991) ("Within the context of the Spears hearing the trial ju d g e has the discretion to decide the best way to elicit the complainant's a r t ic u la t io n of his grievance and the basis for making any credibility assessment n e e d e d ." (footnote omitted)). In addition, because this case did not present e x c e p t io n a l circumstances, the magistrate judge did not abuse her discretion in d e n y in g Harris's motions for appointment of counsel. See Freeze v. Griffith, 849 F .2 d 172, 175 (5th Cir. 1988) ("A civil rights complainant has no right to the a u t o m a t ic appointment of counsel unless the case presents exceptional c ir c u m s t a n c e s ." (citation omitted)). Harris does not contend that the magistrate judge erred in dismissing his c la im s against Sheriff J.B. Smith and the Smith County Jail Infirmary's Medical C a r e Services System. Nor does he contend that the magistrate judge erred in r e fu s in g to permit him to amend his complaint to assert a claim against his t r e a t in g physician. Because these issues are not briefed, they are waived. Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 3 Case: 09-40629 Document: 00511139577 Page: 4 No. 09-40629 Date Filed: 06/11/2010 1 9 8 7 ). Harris's motion in this court for appointment of counsel is DENIED, see F r e e z e , 849 F.2d at 175, and the judgment is AFFIRMED. T h e district court's dismissal of Harris's 1983 complaint as frivolous u n d e r 28 U.S.C. 1915A(b)(1) counts as a strike for purposes of 28 U.S.C. 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996). Harris has at least one prior strike related to the dismissal of another civil rights a c t io n . See Harris v. Herring, No. 2:08-CV-0215 (N.D. Tex. Dec. 12, 2008) (u n p u b l i s h e d ). We CAUTION Harris that, once he accumulates three strikes, h e will not be permitted to proceed in forma pauperis in any civil action or a p p e a l filed while he is incarcerated or detained in any facility unless he is u n d e r imminent danger of serious physical injury. See 28 U.S.C. 1915(g). 4

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