James v. Gonzales

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-11022 Conference Calendar

SYLVESTOR DONALD JAMES, III,

Plaintiff-Appellant,

versus

WILLIAM GONZALES, Dr., ET AL.,

Defendants,

WILLIAM GONZALES, DR.; TIM REVELL, M.D.,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas USDC No. 2:98-CV-138 - - - - - - - - - -

April 19, 1999

Before JONES, SMITH, and DUHÉ, Circuit Judges.

PER CURIAM:*

Sylvestor Donald James, III, Texas inmate # 548272,

proceeding pro se and in forma pauperis (IFP), appeals the

district court’s judgment dismissing his civil rights complaint

as frivolous. The district court may dismiss an IFP complaint as

frivolous under 28 U.S.C. § 1915(e)(2)(B)(i) if it lacks an

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 98-11022 -2-

arguable basis in law or fact. Siglar v. Hightower, 112 F.3d

191, 193 (5th Cir. 1997). We review the dismissal of an IFP

complaint as frivolous for an abuse of discretion. Id.

James’ allegations against Dr. Revell do not demonstrate a

constitutional violation under 42 U.S.C. § 1983. See Varnado v.

Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991) (a prisoner’s

disagreement with prison officials regarding medical treatment

does not give rise to a § 1983 cause of action; negligence,

neglect, medical malpractice, and unsuccessful medical treatment

do not constitute a § 1983 violation). James’ allegations

against Dr. Gonzales also do not demonstrate a constitutional

violation under § 1983. See Baskin v. Parker, 602 F.2d 1205,

1207-08 (5th Cir. 1979)(defendant cannot be held liable under

§ 1983 on a theory of vicarious liability, including respondeat

superior).

James’ appeal is without arguable merit and is frivolous.

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

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

42.2.

The dismissal of this appeal as frivolous and the dismissal

in the district court of the complaint as frivolous count as two

separate “strikes” for purposes of 28 U.S.C. § 1915(g). We

caution James that once he accumulates three strikes, he 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.

DISMISSED AS FRIVOLOUS; WARNING ISSUED.