Pierson v. Gonzales

Fifth Circuit

Pierson v. Gonzales

73 F. App'x 60

CourtCourt of Appeals for the Fifth Circuit

DecidedAugust 19, 2003

Docket03-10251

StatusUnpublished

Cited by2 cases

This text of 73 F. App'x 60 (Pierson v. Gonzales) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Pierson v. Gonzales, 73 F. App'x 60 (5th Cir. 2003).

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Opinion

PER CURIAM. *

Billy Pierson, Texas prisoner # 907177, appeals from the district court’s dismissal with prejudice of his 42 U.S.C. § 1983 civil rights complaint for failure to state a claim for relief. 28 U.S.C. §§ 1915, 1915A. Pierson has filed motions to proceed on appeal, to amend his brief, for appointment of counsel, and to conduct discovery. His motion to amend his brief is GRANTED. His motions to proceed on appeal, to appoint counsel, and to conduct discovery are DENIED.

Pierson argues that he underwent surgery that resulted in the placement of a defective hip screw. Pierson contends that the insertion of this device as well as the inclusion of false documentation in his medical records constituted deliberate indifference to his medical needs. The district court did not err in concluding that Pierson’s claims rise only to the level of medical malpractice or negligence, which is not actionable under 42 U.S.C. § 1983. See Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir.1991). Pierson’s disagreement with his method of treatment is also not cognizable under 42 U.S.C. § 1983. See Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir.1997). Moreover, Pierson’s allegation of false documentation also fails to state a cognizable 42 U.S.C. § 1983 claim.

Because Pierson’s claims lack legal merit, his appeal is dismissed as frivolous. See Howard v. King, 707 F.2d 215, 220 (5th *61 Cir.1983); 5th Cir. R. 42.2. The district court’s dismissal of the present case and our dismissal of this appeal count as two strikes against Pierson for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir.1996). We caution Pierson that once he accumulates three strikes, he may not proceed in forma pauperis 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; 28 U.S.C. § 1915(g) WARNING ISSUED.

*

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.

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PER CURIAM. *

Billy Pierson, Texas prisoner # 907177, appeals from the district court’s dismissal with prejudice of his 42 U.S.C. § 1983 civil rights complaint for failure to state a claim for relief. 28 U.S.C. §§ 1915, 1915A. Pierson has filed motions to proceed on appeal, to amend his brief, for appointment of counsel, and to conduct discovery. His motion to amend his brief is GRANTED. His motions to proceed on appeal, to appoint counsel, and to conduct discovery are DENIED.

Pierson argues that he underwent surgery that resulted in the placement of a defective hip screw. Pierson contends that the insertion of this device as well as the inclusion of false documentation in his medical records constituted deliberate indifference to his medical needs. The district court did not err in concluding that Pierson’s claims rise only to the level of medical malpractice or negligence, which is not actionable under 42 U.S.C. § 1983. See Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir.1991). Pierson’s disagreement with his method of treatment is also not cognizable under 42 U.S.C. § 1983. See Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir.1997). Moreover, Pierson’s allegation of false documentation also fails to state a cognizable 42 U.S.C. § 1983 claim.

Because Pierson’s claims lack legal merit, his appeal is dismissed as frivolous. See Howard v. King, 707 F.2d 215, 220 (5th *61 Cir.1983); 5th Cir. R. 42.2. The district court’s dismissal of the present case and our dismissal of this appeal count as two strikes against Pierson for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir.1996). We caution Pierson that once he accumulates three strikes, he may not proceed in forma pauperis 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; 28 U.S.C. § 1915(g) WARNING ISSUED.

*

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.

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73 F. App'x 60, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pierson-v-gonzales-ca5-2003.

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