Riles v. Gonzales

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 20, 2002
• Docket: 01-41309
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-41309 Conference Calendar

DAVID W. RILES,

Plaintiff-Appellant,

versus

WILLIAM GONZALES; ET AL.,

Defendants,

UNIDENTIFIED EATON; UNIDENTIFIED KUYKENDALL; ORIG DOCTOR; UNIDENTIFIED BUCHANNAN; UNIDENTIFIED BROWN; JOHN DOE, Neurologist,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:01-CV-193 -------------------- June 19, 2002

Before HIGGINBOTHAM, DAVIS, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

David W. Riles, TDCJ # 709594, appeals the district court’s

dismissal as frivolous of his pro se and in forma pauperis (IFP)

civil rights complaint wherein he alleged that numerous

defendants had conspired to deprive him of his "medical

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-41309 -2-

malpractice due process rights" after a "flawed epidural." He

argues that the district court erred in construing his complaint

as alleging the denial of medical care because he "pled and

established as a matter of law a prima facie case of civil

conspiracy to defraud of medical malpractice due process

rights[.]"

Although the district court addressed Riles’s complaint

insofar as it raised an Eighth Amendment claim, the court also

addressed and rejected Riles’s allegation of a conspiracy. We

review for an abuse of discretion. See Norton v. Dimazana, 122

F.3d 286, 291 (5th Cir. 1997).

“The elements of civil conspiracy are (1) an actual

violation of a right protected under § 1983 and (2) actions taken

in concert by the defendants with the specific intent to violate

the aforementioned right.” Kerr v. Lyford, 171 F.3d 330, 340

(5th Cir. 1999). Mere conclusory allegations of a conspiracy,

absent reference to material facts, do not state a cause of

action under 28 U.S.C. § 1983. See Marts v. Hines, 68 F.3d 134,

136 (5th Cir. 1995)(en banc).

None of Riles’s allegations indicate that the defendants

participated in a concerted effort to prevent him from filing a

medical malpractice suit. With respect to his allegation

regarding the fired prison doctor, Riles failed to provide any

information from which the district court could view his

allegation as anything more than conclusory. An evidentiary No. 01-41309 -3-

hearing was not required. See Lawrence v. Lensing, 42 F.3d 255,

259 (5th Cir. 1994)((28 U.S.C. § 2254 case). The judgment of the

district court is AFFIRMED. See Norton, 122 F.3d at 291.

The district court’s dismissal of the complaint as frivolous

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

Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th Cir. 1996). Riles

is WARNED that if he accumulates three strikes pursuant to 28

U.S.C. § 1915(g), 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.

Id.

AFFIRMED; SANCTION WARNING ISSUED.