Powell v. Julye , 111 F. App'x 308 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 20, 2004
Charles R. Fulbruge III
Clerk
No. 04-20077
Conference Calendar
DENNIS E. POWELL,
Plaintiff-Appellant,
versus
DR. ERNESTINE JULYE,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:03-CV-3595
--------------------
Before JOLLY, JONES, and WIENER, Circuit Judges.
PER CURIAM:*
Dennis E. Powell, Texas prisoner # 650087, appeals the
district court’s dismissal of his 42 U.S.C. § 1983 complaint as
frivolous. He argues that the district court abused its
discretion by: (1) amending an order related to the production
of records in connection with the Spears** hearing; (2) not
suspending the Spears hearing because the medical records were
incomplete; (3) dismissing his complaint as frivolous; and
*
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this opinion should not be published and is not precedent except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.
**
Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
No. 04-20077
-2-
(4) failing to rule on his motion for appointment of counsel
prior to dismissing his case.
Powell has failed to show that the district court abused its
discretion by amending the order concerning the production of
records related to the Spears hearing or by failing to suspend
the hearing. See Richardson v. Henry, 902 F.2d 414, 417 (5th
Cir. 1990); Wesson v. Oglesby, 910 F.2d 278, 281 (5th Cir. 1990).
Powell’s factual allegations do not rise to the level of
deliberate indifference to medical needs. At most, he has stated
a claim for disagreement with medical treatment, which is not
actionable in a 42 U.S.C. § 1983 suit. See Norton v. Dimazana,
122 F.3d 286, 292 (5th Cir. 1997). In light of the fact that
Powell’s motion for appointment of counsel was not filed until
after his case was dismissed, his argument is without merit. See
Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).
Powell’s appeal is without arguable merit and is DISMISSED
as frivolous. See 5TH CIR. R. 42.2; Howard, 707 F.2d at 219-20.
The district court’s dismissal of his complaint as frivolous and
the dismissal of this appeal as frivolous each count as a
“strike” for purposes of 28 U.S.C. § 1915(g). See Adepegba v.
Hammons, 103 F.3d 383, 387 (5th Cir. 1996). Powell is cautioned
that if he accumulates three “strikes” under 28 U.S.C. § 1915(g),
he will not be able to proceed in forma pauperis in any civil
action or appeal filed while he is incarcerated or detained in
No. 04-20077
-3-
any facility unless he is under imminent danger of serious
physical injury. See 28 U.S.C. § 1915(g).
APPEAL DISMISSED; SANCTIONS WARNING ISSUED.