Hunt v. Fortner

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 22, 2000
• Docket: 99-41295
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-41295 Summary Calendar

ROLAND R. HUNT,

Plaintiff-Appellant,

versus

DAVE FORTNER, Unit Physician, Powledge Unit; UNIDENTIFIED CLANDER, Officer, Powledge Unit; K.C. LOVE, Unit Physician, Beto I; ROCHELLE MCKINNEY, RN, Regional Director; RITA PARSONS, Assistant Manager,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:99-CV-294 -------------------- September 21, 2000

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Roland R. Hunt, Texas prisoner # 654749, appeals the

magistrate judge’s** dismissal of his 42 U.S.C. § 1983 lawsuit as

frivolous or for failure to state a claim, pursuant to 28 U.S.C. §

1915A. Hunt does not renew his retaliation claim against Officer

Clander or his claims against Rita Parsons, and those claims are

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. ** The parties agreed to proceed before a magistrate judge. No. 99-41295 -2-

waived. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.

1993). Hunt’s claim against Nurse Rochelle McKinney was properly

dismissed because it did not implicate a constitutional right. See

Manax v. McNamara, 842 F.2d 808, 812 (5th Cir. 1988).

Hunt argues that his deliberate-indifference claim

against Dave Fortner and Dr. K.C. Love was improperly dismissed.

Taking the facts as alleged by Hunt as true, he has shown that his

allergic reactions to certain common foods present a serious risk

of medical harm about which Fortner and Dr. Love were aware but

disregarded, failing to take reasonable measures to avoid

unnecessary suffering by failing to reissue his diet card. See

Farmer v. Brennan, 511 U.S. 825, 839-41 (1994); Helling v.

McKinney, 509 U.S. 25, 32 (1993); Hare v. City of Corinth, Miss.,

74 F.3d 633, 648 (5th Cir. 1996) (en banc). His deliberate-

indifference claim is not legally frivolous, and his factual

allegations, if true, may warrant relief; the magistrate judge’s

dismissal, pursuant to § 1915A, was thus error. Accordingly, the

judgment should be vacated in part and remanded for further

proceedings on Hunt’s deliberate-indifference claim.

AFFIRMED IN PART, VACATED IN PART AND REMANDED.