Duane Watson v. David Basse, et al

Filing

UNPUBLISHED OPINION FILED. [13-10099 Dismissed as Frivolous] Judge: CDK , Judge: WED , Judge: JWE. Mandate pull date is 09/13/2013 [13-10099]

Case: 13-10099

Document: 00512352031

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Date Filed: 08/23/2013

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
No. 13-10099
Summary Calendar

August 23, 2013
Lyle W. Cayce
Clerk

DUANE LYNN WATSON, also known as Duane Watson,
Plaintiff-Appellant
v.
DOCTOR DAVID RYAN BASSE; JOSEPHINE ABERNATHY, Director of
Nurses; K. WALLACE, FHA Supervisor of Medical Staff; R. R. WALLACE, LPN;
R. GRIFFIN, RN; N. JACKSON, LVN; K. BRYAN, RN; S V PAUL-TENORIO,
NP; C. RODRIGUEZ, LVN; C. CUNNINGHAM, RN; ARNOLD, Assistant
Warden,
Defendants-Appellees

Appeals from the United States District Court
for the Northern District of Texas
USDC No. 2:12-CV-229

Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
Duane Lynn Watson, Texas prisoner # 903744, appeals the dismissal of his
pro se, in forma pauperis (IFP) 42 U.S.C. § 1983 suit alleging that (1) all of the
defendants violated his Eighth Amendment rights, and that (2) defendants
R.R. Wallace, R. Griffin, N. Jackson, K. Bryan, C. Rodriguez, C. Cunningham,
*

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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and F.H.A. Wallace conspired to violate his Eighth Amendment rights. Since the
district court dismissed the suit both as frivolous and for failure to state a claim
upon which relief could be granted pursuant to 28 U.S.C. §§ 1915(e)(2) and
1915A and 42 U.S.C. 1997e(c), we will conduct a de novo review. See Geiger v.
Jowers, 404 F.3d 371, 373 (5th Cir. 2005).
An IFP complaint may be dismissed as frivolous if it has no arguable basis
in law or fact. Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997). In
reviewing a dismissal for failure to state a claim, this court “must construe the
complaint in the light most favorable to the plaintiff and draw all reasonable
inferences in the plaintiff’s favor.” Elsensohn v. Saint Tammany Parish Sheriff’s
Office, 530 F.3d 368, 371-72 (5th Cir. 2008). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (internal quotation marks and citation omitted). Because Watson does
not challenge the district court’s dismissal of his conspiracy claim, he has
abandoned this claim on appeal. See Geiger, 404 F.3d at 373 n.6.
To the extent that Watson claims that the defendants initially misdiagnosed his back injury, that their treatment regimen was too conservative,
and that their diagnostic and palliative efforts were insufficient, his
disagreements with his medical treatment and his allegations of negligence do
not state valid claims of deliberate indifference to his serious medical needs. See
Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir. 1997); Varnado v. Lynaugh, 920
F.2d 320, 321 (5th Cir. 1991). Watson’s allegations that unspecified defendants
denied him prescribed pain medication post-surgery and retaliated against him
by assigning him to a top bunk are too conclusory to state valid claims. See
Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993)
(“[C]onclusory allegations . . . masquerading as factual conclusions will not
suffice to prevent a motion to dismiss.”). The district court did not err by

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dismissing his suit as frivolous and for failure to state a claim. See Geiger, 404
F.3d at 373.
Watson’s appeal is without arguable merit and is dismissed as frivolous.
See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5TH CIR. R. 42.2. The
dismissal of this appeal as frivolous and the district court’s dismissal as frivolous
and for failure to state a claim each count 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). We
caution Watson that once he accumulates three strikes, he may not 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).
APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING ISSUED.

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