Pace v. Culpepper

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 10, 2002
• Docket: 01-60528
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-60528 Conference Calendar

JAMES PACE,

Plaintiff-Appellant,

versus

ROBERT CULPEPPER, DR.; DAVID CARLSON, DR.; CENTRAL MISSISSIPPI CORRECTIONAL FACILITY; JAMES V. ANDERSON, Commissioner of the Mississippi Department of Corrections,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Southern District of Mississippi USDC No. 3:00-CV-77 -------------------- April 10, 2002

Before SMITH, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:*

James Pace, Mississippi prisoner #72176, appeals the

district court’s dismissal of his 42 U.S.C. § 1983 complaint for

failure to state a claim and as legally frivolous under 28 U.S.C.

§§ 1915(e)(2)(B)(i) & (ii). In his complaint, Pace alleged that

the appellees denied him proper medical treatment and medication

for his back problems. He also asserted that he was placed in

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-60528 -2-

work assignments that were contrary to his medical classification.

We find that Pace’s claims are legally frivolous, and we

affirm the district court’s judgment on this ground. See Neitzke

v. Williams, 490 U.S. 319, 327 (1989). Pace’s contentions amount

to a mere disagreement with the course of his treatment which is

not cognizable in a 42 U.S.C. § 1983 action. At most, Pace’s

allegations amount to assertions of medical malpractice or

negligence, rather than an Eighth Amendment denial of medical

care. See Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991).

We also reject Pace’s claim regarding his work assignments.

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

Pace avers that the magistrate judge was biased and that his

consent to proceed before the magistrate judge was not knowing

and voluntary. Pace has failed to establish that he was denied

an impartial tribunal. See Liteky v. United States, 510 U.S.

540, 555-56 (1994). We also conclude that Pace’s consent to

proceed before the magistrate judge was knowing and voluntary.

See 28 U.S.C. § 636(c)(1); Mendes Jr. Int’l Co. v. M/V SOKAI

MARU, 978 F.2d 920, 924 (5th Cir. 1992).

The district court’s dismissal of Pace’s complaint as

frivolous counts as a strike for purposes of 28 U.S.C. § 1915(g).

See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996). Pace

is warned that he has one strike and that if he accumulates two

more, he will not be able to bring a civil action or an appeal

proceeding in forma pauperis unless he is under imminent danger

of serious physical injury. See 28 U.S.C. § 1915(g).

AFFIRMED; STRIKE WARNING ISSUED. No. 01-60528 -3-