Gabriel Smith v. Texas Tech University, et al


UNPUBLISHED OPINION FILED. [10-10248 Affirmed ] Judge: CDK , Judge: FPB , Judge: JWE Mandate pull date is 11/16/2010; denying motion to appoint counsel filed by Appellant Mr. Gabriel M. Smith [6524232-2] [10-10248]

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Gabriel Smith v. Texas Tech10-10248 etDocument: 00511275195 Case: University, al Page: 1 Date Filed: 10/26/2010 Doc. 0 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 10-10248 S u m m a r y Calendar October 26, 2010 Lyle W. Cayce Clerk G A B R I E L M SMITH, also known as Gabriel Marquette Smith, P la in t if f -A p p e lla n t v. T E X A S TECH UNIVERSITY; S REILLY; TIMOTHY REVELL; JULITO UY; J O H N DORMAN; Dr. NFN FOUST; J TREVINO; JOE GRIMES; GUY SMITH, 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 Northern District of Texas U S D C No. 2:08-CV-103 B e fo r e KING, BENAVIDES, and ELROD, Circuit Judges. P E R CURIAM:* G a b r ie l M. Smith, Texas prisoner # 1052786, proceeding pro se and in fo r m a pauperis (IFP), appeals from the district court's dismissal of his 42 U.S.C. 1983 complaint as frivolous and for failure to state a claim upon which relief c o u ld be granted pursuant to 28 U.S.C. 1915(e)(2)(B). In that complaint, Smith a lle g e d that Texas Tech University, various prison officials, and certain medical p e r s o n n e l had violated his constitutional rights by failing to provide him with 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-10248 Document: 00511275195 Page: 2 Date Filed: 10/26/2010 No. 10-10248 a d e q u a t e medical care, by failing to order work restrictions for him, and by d e n y in g his administrative grievances. Smith has moved this court for a p p o in tm e n t of counsel. We deny that motion. See Cupit v. Jones, 835 F.2d 82, 8 6 (5th Cir. 1987). O n appeal, Smith argues that the district court's dismissal of his lawsuit w a s improper because Texas Tech University was not entitled to Eleventh A m e n d m e n t immunity, his claims dismissed as untimely were part of a c o n t in u in g violation, and his allegations were sufficient to establish deliberate in d iffe r e n c e by the defendants. This court has noted that Texas Tech University is a state institution that is cloaked with sovereign immunity under the E le v e n t h Amendment. United States v. Texas Tech University, 171 F.3d 279, 2 8 9 n.14 (5th Cir. 1999). Even if Smith's assertion is correct that his claim r e g a r d in g the delay of medical treatment for his wrist injury did not accrue until t h e date of his first surgery, that claim would nonetheless be barred by lim it a t io n s . Moreover, none of his remaining claims show that the defendants e x h ib it e d deliberate indifference to his serious medical needs or otherwise v io la t e d his constitutional rights. See Gobert v. Caldwell, 463 F.3d 339, 346 (5th C ir . 2006); Geiger v. Jowers, 404 F.3d 371, 373-74 (5th Cir. 2005). Accordingly, h is claims were properly dismissed as frivolous and for failure to state a claim u p o n which relief could be granted. The district court's dismissal of Smith's complaint counts as a strike for p u r p o s e s of 28 U.S.C. 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 3878 8 (5th Cir. 1996). Smith is warned that if he accumulates three strikes, he will n o t be allowed to bring a civil action or appeal a judgment IFP unless he is under im m in e n t danger of serious physical injury. See 1915(g). T h e judgment of the district court is affirmed. A F F IR M E D ; APPOINTMENT OF COUNSEL DENIED; SANCTION WARNING IS S U E D . 2

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