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Derrick Davis v. Raymond Laborde Corrtl Center, et ( 2019 )


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  •      Case: 19-30125      Document: 00515218622         Page: 1    Date Filed: 12/02/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT    United States Court of Appeals
Fifth Circuit
FILED
December 2, 2019
No. 19-30125
Summary Calendar                          Lyle W. Cayce
Clerk
DERRICK DEWAYNE DAVIS,
Plaintiff-Appellant
v.
RAYMOND LABORDE CORRECTIONAL CENTER; SANDRA SIBLEY; DR.
MCVEA; W. S. SANDY MCCAIN; JAMES LONGINO,
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:18-CV-1271
Before WIENER, HAYNES, and COSTA, Circuit Judges.
PER CURIAM: *
Derrick Dewayne Davis, Louisiana prisoner # 126965, appeals the
district court’s denial and dismissal of his
    42 U.S.C. § 1983
     complaint against
prison officials pursuant to
    28 U.S.C. § 1915
    (e)(2)(B) and 28 U.S.C. § 1915A.
He also moves for the appointment of counsel; that motion 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 19-30125       Document: 00515218622   Page: 2   Date Filed: 12/02/2019
No. 19-30125
Davis asserts that he has degenerative disc disease that prison officials
have treated with pain medication. He argues that his condition is worsening
and that the proper and preferred method for treating his condition is to
provide him with corrective spinal surgery. He argues that prison officials
have shown deliberate indifference to his serious medical need by refusing to
provide him with corrective surgery. Davis’s disagreement with the treatment
being provided to him is insufficient to establish a claim of deliberate
indifference. See Gobert v. Caldwell,
    463 F.3d 339
    , 346 (5th Cir. 2006).
In this court, Davis argues that while in prison, he suffered a stroke that
went untreated, that the Americans with Disabilities Act applies to his back
condition, and that prison officials have retaliated against him for filing this
lawsuit by discontinuing his pain medication.          Because each of these
arguments is made for the first time on appeal, we do not consider them. See
Stewart Glass & Mirror, Inc. v. U.S. Auto Glass Disc. Ctrs., Inc.,
    200 F.3d 307
    ,
316-17 (5th Cir. 2000); Leverette v. Louisville Ladder Co.,
    183 F.3d 339
    , 342
(5th Cir. 1999).
Finding no error in the district court’s denial and dismissal of Davis’s
complaint, we affirm. Our affirmance of the district court’s dismissal means
that Davis has acquired one strike for purposes of § 1915(g). See Adepegba v.
Hammons,
    103 F.3d 383
    , 387 (5th Cir. 1996), abrogated in part on other
grounds by Coleman v. Tollefson,
    135 S. Ct. 1759
    , 1762-63 (2015). Davis is
cautioned that, once he accumulates three strikes, he may no longer proceed
in forma pauperis in any civil action or appeal while he is incarcerated or
detained in any facility unless he is under imminent danger of serious physical
injury. See § 1915(g).
AFFIRMED; MOTION FOR APPOINTMENT OF COUNSEL DENIED;
SANCTION WARNING ISSUED.
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