Gary Allen v. Michelle Gunn, et al

Filing 920100928

Opinion

Case: 09-60874

Document: 00511245135

Page: 1

Date Filed: 09/27/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-60874 S u m m a r y Calendar September 27, 2010 Lyle W. Cayce Clerk

G A R Y D. ALLEN, P la in t if f -A p p e lla n t v. M I C H E L L E GUNN; NORTHROP GRUMMAN SHIP SYSTEMS; RON W O O D A L L , Doctor; CHRISTOPHER EPPS, D e fe n d a n t s -A p p e lle e s

A p p e a ls from the United States District Court fo r the Southern District of Mississippi U S D C No. 1:08-CV-393

B e fo r e DENNIS, CLEMENT, and ELROD, Circuit Judges. P E R CURIAM:* G a r y D. Allen, Mississippi prisoner # 103328, filed a pro se civil rights c o m p la in t pursuant to 42 U.S.C. § 1983 alleging that the defendants denied him a c c e s s to medical care. The parties consented to proceed before a magistrate ju d g e , who dismissed Allen's complaint on the ground that he failed to state a c la im against the defendants for constitutionally inadequate medical care. The M J granted Allen leave to proceed in forma pauperis (IFP) on appeal, but denied

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Case: 09-60874

Document: 00511245135 Page: 2 No. 09-60874

Date Filed: 09/27/2010

A lle n 's request for a transcript of the hearing held pursuant to Spears v. M c C o tte r , 766 F.2d 179 (5th Cir. 1985), on May 12, 2009. Allen now moves this c o u r t for a copy of the transcript at government expense. A lle n cannot satisfy the criteria for obtaining a transcript at government e x p e n s e set forth in 28 U.S.C. § 753(f) because his appeal is frivolous. See H o w a r d v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Allen's allegations, if t r u e , amount to nothing more than a disagreement with medical treatment, w h ic h is insufficient to give rise to a § 1983 claim. See Gobert v. Caldwell, 463 F .3 d 339, 346 (5th Cir. 2006); Domino v. Texas Dep't of Criminal Justice, 239 F .3 d 752, 756 (5th Cir. 2001). Accordingly, Allen's motion for a transcript at g o v e r n m e n t expense is denied, and the appeal is dismissed as frivolous. See 5TH C IR. R. 42.2. W e caution Allen that dismissal of this appeal as frivolous and the MJ's d is m is s a l of his complaint for failure to state a claim each count as a strike. See A d e p e g b a v. Hammons, 103 F.3d 383, 385-87 (5th Cir. 1996). If Allen

a c c u m u la t e s three strikes under 28 U.S.C. § 1915(g), he will not be able to p r o c e e d IFP in any civil action or appeal filed while he is incarcerated or d e t a in e d in any facility unless he is under imminent danger of serious physical in ju r y . See 28 U.S.C. § 1915(g). M O T I O N DENIED; APPEAL DISMISSED; SANCTION WARNING IS S U E D .

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