Smith v. Bradshaw

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 96-40069 Conference Calendar

TERRY D. SMITH,

Plaintiff-Appellant,

versus

JAMES BRADSHAW, Proprietor, Bradshaw State Jail; J.C. Conner, Warden, Bradshaw State Jail; BRADSHAW STATE JAIL,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:95-CV-663 - - - - - - - - - - June 26, 1996 Before HIGGINBOTHAM, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Terry D. Smith, Texas prisoner #713234, appeals from the

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

frivolous under 28 U.S.C. § 1915(d). Smith argues that the

magistrate judge abused her discretion in dismissing his § 1983

action as appellees allowed an argument to escalate and did not

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. No. 96-40069 - 2 -

stop an attack on Smith by other inmates. Because Smith did not

allege that the appellees were aware of a known threat or a

substantial risk of serious harm, the magistrate judge did not

abuse her discretion in dismissing Smith’s failure-to-protect

claim as frivolous under § 1915(d). Farmer v. Brennan, 114 S.

Ct. 1970, 1976 (1994); Jacquez v. Procunier, 801 F.2d 789, 792

(5th Cir. 1986).

Smith also argues that appellees were deliberately

indifferent to his serious medical needs as they failed to

provide adequate medical care after the inmate attack. Because

Smith’s allegations amount to no more than negligence or medical

malpractice, the magistrate judge did not abuse her discretion in

dismissing Smith’s lack-of-adequate-medical-care claim as

frivolous under § 1915(d). See Varnado v. Lynaugh, 920 F.2d 320,

321 (5th Cir. 1991).

Smith’s appeal is without factual or legal basis and is thus

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

1983). Accordingly, his appeal is DISMISSED AS FRIVOLOUS. 5th

Cir. R. 42.2. We caution Smith that any additional frivolous

appeals filed by him or on his behalf will invite the imposition

of sanctions. To avoid sanctions, Smith is further cautioned to

review any pending appeals to ensure that they do not raise

arguments that are frivolous because they have been previously

decided by this court.

APPEAL DISMISSED; SANCTION WARNING ISSUED.