Timothy Robertson v. Allen Correctional Center

Fifth Circuit

Timothy Robertson v. Allen Correctional Center

642 F. App'x 337

CourtCourt of Appeals for the Fifth Circuit

DecidedMarch 18, 2016

Docket15-30359

StatusUnpublished

This text of 642 F. App'x 337 (Timothy Robertson v. Allen Correctional Center) 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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Timothy Robertson v. Allen Correctional Center, 642 F. App'x 337 (5th Cir. 2016).

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Opinion

PER CURIAM: *

Timothy E. Robertson, Louisiana prisoner # 92760, appeals the dismissal of his 42 U.S.C. § 1983 complaint, which the district court dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) as frivolous and for failure to state a claim. Robertson argues that the Allen Correctional Center (ACC) medical staff violated his Eighth Amendment rights by being deliberately indifferent to his medical needs when he contracted a staph infection. He has also filed a motion for the appointment of counsel.

An action may be dismissed if it is frivolous or malicious or fails to state a claim. See § 1915(e)(2)(B)®, (ii). This court will *338 apply the de novo standard of review. See Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir.2005).

Robertson makes no argument challenging the district court’s determination that the ACC, the sole defendant named by Robertson, is not a juridical entity that is amenable to suit. He has thus abandoned this issue. See United States v. Scroggins, 599 F.3d 433, 446-47 (5th Cir.2010); Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.1993). Moreover, even if Robertson had sued a proper defendant, he fails to state a claim that ACC officials and medical staff acted with the requisite level of subjective intent to cause harm, as his disagreement with the medical care that he received does not rise to the level of a deliberate indifference claim. See Domino v. Texas Dep’t of Crim. Justice, 239 F.3d 752, 756 (5th Cir.2001); McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir.1997).

This appeal is frivolous and is therefore DISMISSED. See Howard v. King, 707 F.2d 215, 220 (5th Cir.1983); 5th CiR. R. 42.2. The district court’s dismissal and the dismissal of this appeal count as two strikes for purposes of § 1915(g). See Coleman v. Tollefson, — U.S.-, 135 S.Ct. 1759, 1761-63, 191 L.Ed.2d 803 (2015); Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir.1996), Robertson is WARNED that if he accumulates three strikes, he may not proceed in forma pau-peris 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 § 1915(g). Robertson’s motion for appointment of counsel is DENIED.

*

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: *

Timothy E. Robertson, Louisiana prisoner # 92760, appeals the dismissal of his 42 U.S.C. § 1983 complaint, which the district court dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) as frivolous and for failure to state a claim. Robertson argues that the Allen Correctional Center (ACC) medical staff violated his Eighth Amendment rights by being deliberately indifferent to his medical needs when he contracted a staph infection. He has also filed a motion for the appointment of counsel.

An action may be dismissed if it is frivolous or malicious or fails to state a claim. See § 1915(e)(2)(B)®, (ii). This court will *338 apply the de novo standard of review. See Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir.2005).

Robertson makes no argument challenging the district court’s determination that the ACC, the sole defendant named by Robertson, is not a juridical entity that is amenable to suit. He has thus abandoned this issue. See United States v. Scroggins, 599 F.3d 433, 446-47 (5th Cir.2010); Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.1993). Moreover, even if Robertson had sued a proper defendant, he fails to state a claim that ACC officials and medical staff acted with the requisite level of subjective intent to cause harm, as his disagreement with the medical care that he received does not rise to the level of a deliberate indifference claim. See Domino v. Texas Dep’t of Crim. Justice, 239 F.3d 752, 756 (5th Cir.2001); McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir.1997).

This appeal is frivolous and is therefore DISMISSED. See Howard v. King, 707 F.2d 215, 220 (5th Cir.1983); 5th CiR. R. 42.2. The district court’s dismissal and the dismissal of this appeal count as two strikes for purposes of § 1915(g). See Coleman v. Tollefson, — U.S.-, 135 S.Ct. 1759, 1761-63, 191 L.Ed.2d 803 (2015); Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir.1996), Robertson is WARNED that if he accumulates three strikes, he may not proceed in forma pau-peris 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 § 1915(g). Robertson’s motion for appointment of counsel is DENIED.

*

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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642 F. App'x 337, Counsel Stack Legal Research, https://law.counselstack.com/opinion/timothy-robertson-v-allen-correctional-center-ca5-2016.

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