Nelson Romero v. Kail, et al

Filing

UNPUBLISHED OPINION FILED. [14-10500 Dismissed as Frivolous ] Judge: WED , Judge: EBC , Judge: GJC Mandate pull date is 04/07/2015 [14-10500]

Case: 14-10500

Document: 00512972530

Page: 1

Date Filed: 03/17/2015

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-10500
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
NELSON ROMERO, also known as Ritchord Romero,
Plaintiff-Appellant

March 17, 2015
Lyle W. Cayce
Clerk

v.
NFN KAIL, Bus Driver; DR. NFN CHAVEZ; DR. JUDITH L. THOMAS; NFN
BROWN, Nurse; NFN MCDONOLD, Sergeant; LIEUTENANT NFN
PONDER,
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:14-CV-34
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
Texas prisoner Nelson Romero, # 1127658, appeals the dismissal of his
42 U.S.C. § 1983 lawsuit for failure to state a claim. Although he renews each
of the claims raised in his complaint, he does not challenge the district court’s
reasons for dismissing his claims. He has thus abandoned any basis for appeal.

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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Date Filed: 03/17/2015

No. 14-10500
See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993); Brinkmann v. Dallas
Cnty. Dep. Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
Even if he had briefed the issues, he could not demonstrate any error in
the district court’s dismissal.

As the district court determined, Romero’s

complaints against Drs. Chavez and Thomas fail because his own pleadings
establish that he received ongoing medical treatment for complaints of neck
and back pain following a March 2012 bus accident. See Gobert v. Caldwell,
463 F.3d 339, 346 n.24 (5th Cir. 2006). Neither his disagreement with the
treatment he received nor his assertion that he should have undergone
additional diagnostic testing gives rise to a claim of deliberate indifference. See
id. at 346. Similarly, Romero’s complaint against Lt. Ponder was properly
dismissed because his allegations do not show that Lt. Ponder was aware of
and wantonly disregarded any excessive risk to his health by failing to take
him for emergency treatment upon his arrival on the Clements Unit. See
Farmer v. Brennan, 511 U.S. 825, 837 (1994); see also Johnson v. Treen, 759
F.2d 1236, 1238 (5th Cir. 1985). Nurse Brown’s refusal to give him pain
medication on three dates in September 2013 is likewise not actionable as
Romero has not alleged that the three-day delay in receiving pain medication
resulted in any substantial harm. See Mendoza v. Lynaugh, 989 F.2d 191, 195
(5th Cir. 1993).
To the extent that Romero sought to hold Sgt. McDonold vicariously
liable, his claim is not cognizable. See Carnaby v. City of Houston, 636 F.3d
183, 189 (5th Cir. 2011). Further, his claim against Officer Kail for reckless
driving was properly dismissed as it does not give rise to a claim of a
constitutional dimension. See Johnson v. Dallas Indep. Sch. Dist., 38 F.3d 198,
200 (5th Cir. 1994).

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No. 14-10500
Romero’s appeal lacks arguable merit and is therefore dismissed as
frivolous. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983); 5TH CIR.
R. 42.2. Both this court’s dismissal of the instant appeal and the district court’s
dismissal of his complaint count as strikes for purposes of 28 U.S.C. § 1915(g).
See § 1915(g); Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996).
Romero has at least one prior strike. See Romero v. Brown, No. 05-10234 (5th
Cir. 2005) (unpublished). Because he has now accumulated three strikes,
Romero is barred from proceeding 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 Adepegba, 103 F.3d at
388; § 1915(g).
APPEAL DISMISSED; § 1915(g) BAR IMPOSED.

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