Collins v. Leeves

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 97-20566 Summary Calendar

JAMES WILLARD COLLINS, JR.; DAVID ROY,

Plaintiffs,

JAMES WILLARD COLLINS, JR.,

Plaintiff-Appellant,

versus

JERRY EDWARD LEEVES; GARY JOHNSON; SAMUEL YOUNG; LISA BRIM; RANDALL LEE HEALY,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. H-96-CV-897 - - - - - - - - - - May 15, 1998 Before KING, HIGGINBOTHAM and DAVIS, Circuit Judges.

PER CURIAM:*

James Willard Collins, Jr., Texas inmate # 631847, appeals

the district court’s dismissal as frivolous, pursuant to 28

U.S.C. § 1915(e)(2)(B)(i), of his pro se, in forma pauperis

(IFP), civil rights lawsuit, 42 U.S.C. § 1983. We review the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 97-20566 -2-

dismissal for an abuse of discretion. Siglar v. Hightower, 112

F.3d 191, 193 (5th Cir. 1997).

Collins contends that the defendants denied him a necessary

hernia surgery. Collins’ assertion amounts to a disagreement

with the medical treatment provided, or, at most, negligence,

which is not actionable under § 1983. Varnado v. Lynaugh, 920 F.2d 320, 321

(5th Cir. 1991). Collins has abandoned his claims asserted in the

district court that he was denied adequate medical treatment for

back, ulcer, and eye problems by failing to support his

assertions with factual and legal support. See Al-Ra’id v.

Ingle, 69 F.3d 28, 33 (5th Cir. 1995). Collins has not shown

plain error with respect to his assertions, raised for the first

time, that he is being denied adequate medical treatment for a

neck injury, arthritis, a skin disorder, hemorrhoids, and a

prostate problem. See Douglass v. United Servs. Auto. Ass’n, 79

F.3d 1415, 1428 (5th Cir. 1996)(en banc).

Collins has not shown that the district court abused its

discretion by dismissing his claim that the defendants subjected

him to cruel and unusual treatment by having him perform work

that was inappropriate to his medical conditions. See Jackson v.

Cain, 864 F.2d 1235, 1246 (5th Cir. 1989).

Collins has not shown plain error with respect to his

claims, raised for the first time, that the defendants have

retaliated against him; have altered, fabricated, and destroyed No. 97-20566 -3-

medical records; and have prevented him from photocopying

necessary records. Douglass, 79 F.3d at 1428.

Collins’ motions for a restraining order, production of

hearing transcript, production of photocopies, production of

medical credentials, and reassignment to the Walls Unit are

DENIED. Collins’ motion for production of the docket sheet and

to correct the relief requested in his motion for production of

credentials is GRANTED, provided that Collins pays the fee for

the docket sheet.

Collins’ appeal is without arguable merit and thus

frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). The

district court did not abuse its discretion in dismissing

Collins’ § 1983 complaint as frivolous. Siglar, 112 F.3d at 193.

Because the appeal is frivolous, it is DISMISSED. See 5TH CIR.

R. 42.2.

Collins is cautioned that any additional frivolous appeals

filed by him or on his behalf will invite the imposition of

sanctions. To avoid sanctions, Collins should review any pending

appeals to ensure that they do not raise arguments that are

frivolous.

APPEAL DISMISSED; SANCTION WARNING ISSUED; MOTION FOR

PRODUCTION OF DOCKET SHEET AND TO CORRECT RELIEF REQUESTED IS

GRANTED; OTHER MOTIONS DENIED. No. 97-20566 -4-