King v. Scott
King v. Scott
Opinion
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 02-40388 Summary Calendar
GERALD KING,
Plaintiff-Appellant,
v.
WAYNE SCOTT; TEXAS DEPARTMENT OF CRIMINAL JUSTICE; TEXAS BOARD OF PARDONS AND PAROLES; WILLIAM SHELBY; WOOTEN, Warden; T. HAYNES, Major; UNIVERSITY OF TEXAS MEDICAL BRANCH GALVESTON,
Defendant-Appellee.
-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. G-99-CV-235 -------------------- December 12, 2002
Before BARKSDALE, DEMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Gerald King, Texas prisoner number 589458, has appealed the
district court’s judgment dismissing his civil rights complaint
as frivolous pursuant to
28 U.S.C. § 1915(e)(2)(B)(i).
King’s motions for leave to supplement the record on appeal
and for appointment of counsel are denied. See Theriot v. Parish
of Jefferson,
185 F.3d 477, 491 n.26 (5th Cir. 1999); Ulmer v.
Chancellor,
691 F.2d 209, 212(5th Cir. 1982).
* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 02-40388 -2-
King complains that the district court dismissed his
complaint prior to serving the defendants. An in forma pauperis
(“IFP”) complaint shall be dismissed at any time if the district
court determines that the case is frivolous or malicious. Siglar
v. Hightower,
112 F.3d 191, 193(5th Cir. 1997); see
28 U.S.C. § 1915(e)(2)(B)(i).
King contends that the district court should not have
dismissed his complaint without holding an evidentiary hearing
pursuant to Spears v. McCotter,
766 F.2d 179(5th Cir. 1985).
King has not shown that the deficiencies in his constitutional
claims could be cured by additional factual development. See
Eason v. Thaler,
14 F.3d 8, 10(5th Cir. 1994).
King contends that the defendants acted with deliberate
indifference to his asthma and hypertension by changing his
medication and by assigning him to field work. King merely
disagrees with the course of treatment. Unsuccessful medical
treatment, acts of negligence, neglect, or medical malpractice
are insufficient to give rise to a
42 U.S.C. § 1983cause of
action. Varnado v. Lynaugh,
920 F.2d 320, 321(5th Cir. 1991);
see Jackson v. Cain,
864 F.2d 1235, 1246(5th Cir. 1989).
King contends that the defendants retaliated against him
because he is a writ writer. King’s conclusional allegations
show only that King subjectively believes that the defendants
retaliated against him. See Woods v. Smith,
60 F.3d 1161, 1166 No. 02-40388 -3-
(5th Cir. 1995); see also Johnson v. Rodriguez,
110 F.3d 299, 310(5th Cir. 1997).
King contends that the Unit Warden had established a quota
for field workers and that blacks and writ writers were singled
out for work in the fields. He contends that the defendants were
motivated by racial animus because he is black. King complains
also that the defendants retaliated against him because he filed
a civil rights complaint in the district court. Because these
issues have been raised for the first time on appeal, they have
not been considered. See Leverette v. Louisville Ladder Co.,
183 F.3d 339, 342(5th Cir. 1999).
King contends that the district court erred in determining
that the Texas Department of Criminal Justice—Institutional
Division and the Texas Board of Pardons and Paroles are immune
from suit under the Eleventh Amendment. This argument is without
merit. See Oliver v. Scott,
276 F.3d 736, 742 & n.5 (5th Cir.
2002); Littles v. Board of Pardons and Paroles Div.,
68 F.3d 122, 123(5th Cir. 1995).
King contends that the district court was unfairly biased
against him. This argument is without merit. See Liteky v.
United States,
510 U.S. 540, 555(1994).
Because the appeal is frivolous, it is dismissed. 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
dismissal of the complaint as frivolous by the district court No. 02-40388 -4-
both count as a strike for purposes of
28 U.S.C. § 1915(g). See
Adepegba v. Hammons,
103 F.3d 383, 388(5th Cir. 1996). In King
v. Texas Dept. of Crim. Justice—Institutional Div., No. 02-10380
(5th Cir. Oct. 30, 2002) (unpublished), this court recognized
that King had accumulated three strikes for purposes of
28 U.S.C. § 1915(g). We reiterate that King may not proceed IFP 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
28 U.S.C. § 1915(g).
APPEAL DISMISSED; MOTIONS DENIED; IMPOSITION OF THREE-
STRIKES BAR REITERATED.
Reference
- Status
- Unpublished